/ 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  Ol   LAW 
LIUIURY 


Qi 


Digitized  by  tine  Internet  Archive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/casesonlawofcarrOOmccl 


VU   ^   ui'^^A-iro 


SELECTION    OF    CASES 


ON 


THE  LAW  OF  CARRIERS 


OF  GOODS  AND  OF  PASSENGERS. 


BY 


EMLIN   McCLAIN,  A.M.,  LL.D. 

CHANCELLOR    OF    THE    LAW    DEPARTMENT    OF    THE    STATE 
UNIVERSITY    OF    IOWA. 


SECOND    EDITION. 


BOSTON: 
LITTLE,  BROWN,  AND   COMPANY. 

1896. 


Copyriyhl,  ISO4, 
Bv  Kmlin  McClain. 


Copjfriffht,  1SC>6, 
By  Emi.ix  McCi.ain. 


Joim  WiijMty  A>ri)  Box,  Camiiwihoe.  U.S.A. 


PREFACE. 


Although  this  collection  of  cases  as  now  published  remains  sub- 
stantially the  same  as  when  the  Cases  on  Carriers  of  Goods 
were  published  three  years  ago,  and  the  Cases  on  Carriers  of 
Passengers  were  added  a  year  later,  making  the  first  complete 
edition,  yet  there  have  been  such  changes  in  plan  as  to  make  an 
entirely  new  preface  proper ;  and  the  former  one  is  omitted  as 
not  applicable  to  the  book  in  its  present  form,  although  the  gen- 
eral purpose  and  plan  have  not  been  materially  changed. 

Three  principal  considerations  have  been  borne  in  mind  in  the 
selection  of  the  cases  to  be  included :  First,  to  secure  at  least  one 
case  on  each  question  involved  in  the  law  of  carriers  upon  which 
the  instructor  would  feel  that  he  ought  to  give  his  class  informa- 
tion, so  that  the  collection  will  serve  substantially  the  purpose  of 
a  text-book.  Second,  to  select  cases  which  present  the  principles 
of  the  subject  by  way  of  adjudication  of  actual  controversies  be- 
fore a  court,  and  not  merely  by  way  of  dictum  or  argument  in 
laying  down  the  general  propositions  of  law  on  the  subject.  These 
text-book  cases  are  apparently  satisfactory  to  the  novice  in  the 
study  of  cases,  because  they  seem  to  serve  the  purpose  of  a  trea- 
tise, but  they  are  not  the  cases  which  carry  the  greatest  weight 
when  cited,  and  therefore  are  not  the  cases  which  the  student 
should  master  in  determining  what  the  law  is.  The  writer  of  a 
treatise  is  in  position  to  state  more  accurately  and  reliably  the 
general  propositions  of  law  on  a  subject  than  is  the  judge  who 
has  before  him  for  consideration  only  a  particular  question  to  be 
decided  under  one  branch  or  rule  of   the  subject,  although  he 


JT  PREFACE. 

mav   think   it  desirable   to   illustrate   his   reasoning   by  stating 
general  proi)08ition8  relating  to  other  branches.     Third,  to  choose 
cases  which  state  what  is  believed  to  be  the  correct  or  preponder- 
ating rule  as  to  any  particular  question,  where  there  is  a  conllict; 
but  where  the  conflict  is  marked  and  there  are  strong  reasons  or 
weightv  authorities  on  eacii  side,  then  it  has  boon  sought  to  pre- 
sent at  least  one  case  on  each  side  for  the  purpose  of  indicating 
the  contlict.    If  this  has  not  been  deemed  expedient,  then  the  fact 
of  the  existence  of  a  difference  of  view  is  indicated  by  references 
contra  in  a  note.     But  the  harmonizing  of  ai)parent  conflicts  and 
the  collection  of  authorities  upholding  opposing  views  has  been 
left  for  the  student's  own    eflorts    under   the    guidance    of    his 
instructor,  the  object  of  this  collection  being,  not  to  render  un- 
necessary  or   minimize    the  work    of   the   teacher,  but   only  to 
furnish  suitable  material  to  be  placed  in  the  hands  of  the  student 
in  connection  with  a  couree  of  instruct  ion  on  the  sul>joct. 

In  order  however  to  guide  the  student,  as  well  as  the  teacher, 
in  forming  some  connected  plan  of  the  whole  subject  which  shall 
serve  to  indicate  the  relation  of  the  cases  to  each  other  and  form 
a  basis  for  other  reading,  the  cases  have  been  arranged  in  ac- 
cordance with  an  analysis   wbifh  is  j. resented  at  the  beginning 
of  the  book  and  carried  through  it  by  means  of  headings  and  suh- 
hcadings.     There  is  no  intention   l)y  means  of  this  analysis  to 
lessen  the  labora  of  either  the  teacher  or  the  student  by  stating 
in  condensed  form  what  the  law  is,  for  it  is  believed  that  such 
condensed  and  analytical  statements,  usefid  as  they  may  be  as  a 
summing  up  and  conclusion  of  inf(jrniation  already  ae(|iiired,  are 
entirely  misleading  when  relied  ui)on  as  sources  of  information 
on  the  law,  and  detrimental  in  that  they  iudtiee  many  students  t(j 
omit  that  careftd  and  critical  study  which  -jives  to  a  legal  eiluca- 
t«on  ita  princi|»al  disciplinary  value.     With   the  same  view,  all 
headnotcM  or  brief  statements  of  points  decided  have  been  omitted. 
In  order  to  bring  the  collection  within  reasonable  scojie,  por- 
tions of  some  of  the  opinions,  whi<'h  hrive  no  bearinL'  on  the  point 


PREFACE. 


which  the  case  is  intended  to  ilhistrate,  are  omitted,  and  in  most 
cases  also  the  arguments  of  counsel.  While  the  retention  of  each 
case  intact  would  have  been  in  itself  advantageous,  yet  the  corre- 
sponding advantage  of  being  able  to  present  within  the  necessary 
limits  of  such  a  collection  other  more  important  matter  has  been 
thought  to  justify  such  slight  omissions  as  have  been  made.  But 
all  omissions,  except  in  case  of  names  and  arguments  of  counsel, 
have  been  in  some  form  indicated.  Xo  effort  has  been  made  to 
edit  the  opinions  or  correct  the  references ;  but  wherever  a  case 
has  been  found  cited  which  is  included  in  this  collection,  the  fact 
is  indicated  by  a  reference  in  bold-faced  type  to  the  page  where 
the  case  may  be  found. 

EMLIN  McCLAIN. 

Iowa  City,  July,  1896. 


ANALYSIS. 


INTRODUCTION. 

Public  Callings 1 

I.   CARRIERS  OF  GOODS. 

1.  Who  are  Common  Carriers 11 

a.  Public  Calling  ;  Compensation 11 

b.  Various  Classes  of  Business 23 

c.  Baggage  of  Passengers 31 

2.  Delivery  to  Carrier 61 

3.  Duty  to  Serve  the  Public 66 

a.  Without  Discrimination 66 

b.  For  a  Reasonable  Compensation .     .     .     .  88 

4.  Carrier's  Liability .     .  95 

a.  Act  of  God 95 

b.  Act  of  Public  Enemy ....  Ill 

c.  Act   of   Shipper ....  119 

d.  Nature  of  Goods ....  130 

e.  Carrier's  Fault  or  Negligence 138 

5.  Limitation  of  Liability 160 

a.  What  Valid 160 

b.  In  Case  of  Negligence 197 

c.  Agreed  Valuation 206 

d.  Time  for  Claiming  Damages 210 

e.  Consignee  Bound 22i) 

/.   Available  to  Connecting  Carrier 227 

6.  The  Bill  of  Lading 233 

a.  As  a  Contract 233 

b.  As  a  Receipt 247 

7.  Delivery  by  Carrier 260 

A.  Termination  of  Exceptional  Liability 260 

B.  Termination  of  Liability  as  Bailee 291 

a.  Delivery  to  Connecting  Carrier 291 

b.  Delivery  to  Consignee 318 

c.  Delivery  to  Holder  of  Bill  of  Lading 330 

d.  Delivery  to  True  Owner 3 10 

e.  Delivery  to  Wrong  Party  by  Mistake  or  Fraud 212 

/.    Stoppage  in  Transitu 361 

g.    Seizure  under  Legal  Process 363 


viii  ANALYSIS. 

8.  Remrdies  A3  AGAINST  Cakkikk 3S1 

a.  Who  may  Sue 3sl 

b.  Form  of  Action 401 

c.  Burden  of  Proof 411 

rf.    Evidence  of  Negligence 425 

9.  Caukifk's  Com  tens  ation 431 

a.  Frei^'lit  Charj^'es 4';i 

b.  Lien 401 

il.    CAKUIEUS  OF   PASSENGERS. 

1.  Wno  Deemki) 488 

2.  PiiiLic  Calling 501 

3.  Wm>  Dkkmed  Passengkks 528 

<i.    Acceptance 52S 

b.  Persons  pursuing  Special  Calling 532 

c.  Employees 53G 

il.   For  Compensation 542 

4.  Liability  fi»k  Injuries 5G0 

o.    From  Negligence 560 

b.  N     '  .       ••  or  Wrong  of  Servants  596 

c.  llow-pa-ssengers  or  Others   ...  ....  609 

»/.    L^i.l.iLutury  Negligence ...  020 

5.  LiAUiLiTY  Foil  Delay ....  637 

0.    L1.MITATI0X  OK  Liauilhy  644 

7.    Tickets 603 

t>.   Reui'LATiONS  .  685 


APPENDIX. 
Important  Federal  Statutes  relating  to  Carriers      ....    721 
Index  739 


TABLE   OF   CASES 

PRINTED  IN  THIS  VOLUME. 


PAGE 

Adams  v.  Scott 376 

Allen  V.  Sackrider 11 

Allender  v.  Chicago,  etc.  R.  Co.  .     .  529 

American  Ex.  Co.  v.  Stack      .     .     .  344 

Anchor  Line  v.  Dater 224 

Armentrout  ?•.  St.  Louis,  etc.  R.  Co.  325 

Ashniole  v.  Wainwright 457 

Atchinson,  etc.  R.  Co.  v.  Roach    .     .  306 
Atchison,  Topeka  &  Santa  Fe  R.  Co. 

V.  Denver  &  New  Orleans  R.  Co.  79 

Auerbach  v.  N.  Y.  C.  &  H.  R.  R.  Co.  670 

Ayres  v.  Chicago,  etc.  R.  Co.  ...  10 

Babcock  v.  Lake  Shore,  etc.  R.  Co. .  227 

Bailey  v.  Damon 434 

('.  Hudson  River  R.  Co.     .     .     .  322 

Baldwin  i'.  American  Ex.  Co. .     .     .  266 

Bassett  v.  Spofford 484 

Bastard  v.  Bastard 88 

Bates  V.  Old  Colony  R.  Co.      ...  647 
Batton  V.  South  &  North  Alabama  R. 

Co 618 

Baylis  v.  Lintott 408 

Beard  v.  Illinois  Central  R.  Co.    .     .  157 

Bennett  v.  Dutton 501 

Blackstock  v.  New  York,  etc.  R.  Co.  142 

Bliven  v.  Hudson  River  R.  Co.     .     .  304 

Blossom  V.  Dodd 193 

Blumantle  v.  Fitchburg  R.  Co.     .     .  54  n. 

Boon  V.  Steamboat  Belfast  ....  189 

Boyce  v.  Anderson 488 

Boylan  v.  Hot  Springs  R.  Co.  .    .     .  673 

Bradshaw  i-.  South  Boston  11.  Co.    .  698 

Brien  v.  Bennett 528 

Braithwait  v.  Power 444 

Briggs  V.  Boston,  etc.  R.  Co.     .     .     .  473 
Bucicland  v.  Adams  Exp.  Co.       .    30,  222 

Buel  V.  New  York  C.  R.  Co.    .     .     .  630 

Campbell  ik  Conner 467 

Central  R.  Co.  v.  Combs      ....  679 

Cliase  V.  Alliance  Ins.  Co 459 

Chicago,  etc.  R.  Co.  v.  Flexman  .     .  60-;I 

V.  Iowa 89 

V.  Jenkins 464 

V.  People cm 

V.  Williams 716 

Christie  v.  Griggs 560 

Citizens'  Bank  v.  Nantucket  Steam- 
boat Co 15 


PAOB 

Clark  V.  Burns 59 

Clarke  v.  Rochester,  etc.  R.  Co.  .     .  130 

Colt  V.  McMechen 104 

Congar  v.  Chicago,  etc.  R.  Co.     .     .  119 

Connolly  v.  Warren 50 

Constable  v.  National  Steamship  Co.  151 

Coup  V.  Wabash,  etc.  Ry.Co.  ...  27 

Cuba,  The 443 

Curling  v.  Long 431 

Dale  V.  Hall 401 

Davis  V.  Garret  ........  147 

V.  James 381 

Dawes  v.  Peck 382 

Delaware,  Tiie 233 

Duff  V.  Allegheny  V.  R.  Co.    .     .     .  548 

Dwight  V.  Brewster 16 

Edmunds  v.  Merchants'  Desp.  Transp. 

Co 3.56 

Edwards  v.  White  Line  Transit  Co.  372 

Elkins  V.  Boston  &  Maine  R.  .  .  .  398 
Empire  Transp.  Co.  y.Wamsutta  Oil, 

etc.  Co 425 

Evans  v.  Fitchburg  R.  Co 133 

Everett  v.  Chicago,  etc.  R.  Co.     .     •  688 

Express  Co.  v.  Caldwell 210 

Faulkner  v.  Hart 286 

Pick  V.  Chicago  &  N.  W.  R.  Co.  .     .  606 

Filer  v.  New  York  C.  R.  Co.    .     .     .  629 

Finn  v.  Western  R.  Co 386 

First  National  Bank  v.  Marietta,  etc. 

R.  Co 56 

Flint,  etc.  R.  Co.  v.  Weir      ....  17 

Forward  v.  Pittard 97 

Frank  v.  Ingails 681 

Frederick  v.  Marquette,  etc.  R.  Co. .  694 

Freeman  v.  Birch 397 

Friend  v.  Woods 107 

Garden  Grove  Bank  v.  Humeston,  etc. 

R.  Co 241 

Geismer  v.  Lake  Shore,  etc.  R.  Co. .  145 

Gibbon  v.  Paynton 160 

Gilshannon  v.  Stony  Brook  R.  Co.   .  536 

Gisbourn  v.  Hurst 12 

Gleeson  v.  Virginia  Midland  R.  Co.  590 

Gordon  v.  Hutchinson 13 

Grace  v.  Adams 220 


TAPLE    OF    CASES. 


irmnJ  RApidt.  etc.  R.  Co.  r.  Huntley 


I  ~         i-rd 

Cjfrrli   I.  .MiiWdUkcv,  i!U.   U.  Co.  .      . 

Cirusvcnor  i.  New  York  Cent.  K.  Co. 
Half  r.  New  Ji-rtey  Sieam  Navigation 


i  ..lilroad  V.  Swift      .     . 

llai-r.!.       r.i  kwood 

lUrt  (   liKUK"',  fl*-"    R-  Co.      .      . 

!'  .  I-«jui*vj|le,  etc.  U.  Co. 
neC.  K.  Co.      .     .     . 

1  N'.jwlen 

!  r.  It.  Co.  r  Moore 

1  ivigation  Co 


Idaho,  The 

lUinui*  Cvnt.  R.  Co.  c.  Grevn 

I .  Wliitiemore      .     .     . 
IngalU  r.  Uai« 


Jarnbiu  r.  St  Paul,  etc  R.  Co.   .     . 
JffYtTS'.iivilU'  K.  Co.  f.  Rogers     .     . 

Jeiick*  I-  I'ok'inan 

Jerome  r.  Siiiith      ... 
Jud»on  r.  Western  It.  Co. 

Kantn*  City,  etc.  R.  Co.  r.  Morrison 
c.  Kiley 

Keeley  r.  lioaton  &,  Maine  K.  Co 

Kill  r.  Atchison,  etc.  R.  Co. 
r.  OM  '     '  •  •   K.  Co. 

Kiniiick  '  tc.  K  Co. 

Kir»t  r.  M,.  ...  etc.  H.  Co. 

Krulder  c.  billion  . 


21 
50 


23- 

2o 

&4 

1G4 

128 

65 

41*5 

173 

4y« 

200 

.540 
020 
714 

501 

657 

G8o 
51'.» 

m:i 

1»5 

47 
700 

";74 

428 
3'J4 


PAGE 

M unlock  r.  Boston,  etc.  R.  Co.    .     .  701 

.Musfhauip  f.  Lancaster,  etc.  R.  Co. .  2'.i8 

Mynard  v.  Syracuse,  etc.  R.  Co.    .  .  201 

Nashville,  etc.  R.  Co.  v.  Spraybcrry  676 

Neiitfie,  The 25 

Nt'vin  f.  Ptillraan  P.  Car  Co.  .     .     .  505 

Nultun  r.  Western  H.  Co 632 

Norway  Plains  Cu.  v.  Boston  &  Maine 

R 274 

Nunn  V.  Georgia  R 640 

Nutlini;  c.  Connecticut  R.  R.  Co.     .  304 


Ix>wis  r.  New  York  Sleeping  Car  L'o.  bl 
lArvrxtoiA  Steam  Co.  f.  i'ha-nix  Inn. 

Co. 23.  197 

L.  L  &  G.  It  Co.  V.  Maris  ....  281 

McArthur  &.  llurll^rt  . .  Sears     .  24 
McKdtvtt  r,  New  Jersey   Steamboat 

Co 32X 

McFad.len  v.  MUwiurl  Pacific  R.  Co.  20'J 


S    Y   C  R  Co.  .     .     . 

i/o,  etc.  R.  Co.      .     . 

iC.  Co.  f.  Kirk  wood  . 

U 

Ivania  R.  Co.  .     .     . 

r.il  IL  Co.  r.  Cnrrow 
Miihern,  etc.   R.   Co.  c. 


n,;,:, 


.1.    t:  c, 


er  . 
etc. 


Morriton  v.  Krl«  R.  Co. 


lois  CtntnU  It  ('•>    -vnn. 
, 1 


O'Brien  v.  Gilchrist ?.47 

Ohio,  etc.  R.  Co.  r.  Yolie     ....  367 

Old  Colony  R.  Co.  c.  Tripp      .     .     .  522 

Orange  County  Bank  r.  Brown    .     .  34 

Ouimit  V.  Hin'siiaw 292 

Packard  r.  Earl 269 

Pennsylvania  R.  Co.  i'.  Stern  &  Spie- 
gel        830 

Pershing  c.  Chicago,  etc.  R.  Co. .     .  584 

Peterson  c.  Chicago,  etc.  R.  Co.  .     .  313 

Phillips  r.  R».die 461 

Pierce  i".  Milwaukee,  etc.  R.  Co. .     .  19 
Pittshuri:,  etc.  U.  Co.  r.  llazen           147  n. 

V.  Ilinils 615 

Pollard  V.  Vinton 262 

Potts  r.  New  York,  etc.  R.  Co.     .     .  465 

Powell  r.  Myers 342 

Pozzi  r.  Shipton 406 

Price  r.  Oswego,  etc.  R.  Co.     .     .     .  846 

Proprietors,  etc.  r.  Wood      ....  96 

Putnam  r.  Broadway,  etc.  R.  Co.  609 

Quiinby  v.  Boston  &  Maine  R.  Co.   .     662 

Ragan  &  Buflet  r.  Aiken      ....  88 

Railroad  Co.  f.  FrnlofI 41 

V.  .Manufacturing  Co 2M 

r.  Reeves 110 

r.  Walrath 696 

Railway  Co.  r.  Stevens 644 

r.  Wynn 208  n. 

Rainsileii  r.  Boston,  etc.  R.  Co.    .     .  601 

Heagan  I'.  Knrnu-rb"  Loan  &  Trust  Co.  92 
Relyea  r.  New    Haven    Roiling  .Mill 

Co 2VJ 

Riley  .-.  llorne HJ'^ 

Roberts  r.  Koehler 477 

V.  Turner 32 

Robinson  r.  Baker 480 

Ryan  c  Cnniherland  V.  R.  Co.     .     .  538 

St.  Joseph,  etc.  R.  Co.  r.  Wheeler    .  649 

Sa'nuel  I'.  Cheney 352 

Snrgent  v.  Boston,  etc.  R.  Co.  ...  7t> 

Say  ward  r.  Stevens 437 

Scaife  r.  Tohin 454 

:;7ri;  s,.,vili  r Crilllth 13h 

'  J  I     s.:ir«  !■    KiiHiern  R.  Co 6:i7 

lit  1  .sliaw  r.  Railroad  Co ;).36 

Shelton  v.  Merchants'  Desp.  Transp. 

Co 224 


5 

699 
417 
613 
6<}9 
451 
62 

66 
121 
420 


TABLE   OF   CASES. 


2:1 


Shoemaker  v.  Kingsbury     ....  401 

Shriver  v.  Sioux  City,  etc.  R.  Co.     .  414 
Sioux  City,  etc.  R.  Co.  r.  First  Nat'l 

Bank 256 

Skinner  v.  Upshaw 4(31 

Sleeper  v.  Pennsylvania  R.  Co.    .     .  683 

Smith  V.  Seward 408 

Southern  Exp.  Co.  v.  Woniack    .     .  115 

Sprague  r.  Missouri  Pac.  R.  Co.  .     .  216 

State  I'.  Cincinnati,  etc.  R.  Co.     .     .  84 

V.  Overton 666 

Steamboat  Lynx  v.  King      ....  153 

Steamboat  New  World?'.  King     .     .  572 

Steamboat  Virginia  v.  Kraft    .     .     .  469 

Stiles  f.  Davis 363 

Swan  V.  Manchester,  etc.  R.  Co. .     .  709 

Sweet  1-.  Barney 318 

Tarbell  v.  Central  Pac.  R.  Co.      .     .  542 

Thurston  v.  Union  Pac.  R.  Co.     .     .  516 

Tindal  v.  Taylor 433 


Toledo,  etc.  R.  Co.  i-.  Brooks  .     .     .  554 

Townsend  v.  N.  Y.  Cent.  R.  Co.    .     .  691 

Transportation  Co.  v.  Block  Bros.    .  34 

V.  Downer 411 

Trent  Nav.  Co.  v.  Wood 95 

Vinton  v.  Middlesex  R.  Co.     ...  517 

Waite  V.  Northeastern  R.  Co.       .     .  633 

Waterbury  v.  N.  Y.  Cen.  R.  Co.    .     .  546 

Way  V.  Chicago,  etc.  R.  Co.     .     .     .  556 

Wegener  v.  Smitli 456 

Wells  V.  Thomas 471 

Wernwag    v.  Philadelphia,   etc.  R. 

„Co 057 

\V  estern  Transp.  Co.  v.  Hoyt  .     .     .  445 

Weyand  v.  Atchison,  etc.  R.  Co. .     .  331 

White  V.  Winnisimmet  Co 124 

Wilton  V.  Middlesex  R.  Co.     ...  544 

Witbeck  r.  Holland 270 

Wooster  v.  Tarr 450 


SELECT    CASES 


ON 


THE    LAW    OF    CARRIEIIS. 


INTRODUCTION. 

PUBLIC   CALLINGS. 


V- 


MUXN   V.   ILLINOIS.! 
94  U.  S.  113.     1876. 

Chief  .Justice  Waite:  The  question  to  be  determined  in  this 
case  is  whether  the  general  assembly  of  Illinois  can,  under  the  limi- 
tations upon  the  legislative  power  of  the  States  imposed  by  the  Con- 
stitution of  the  United  States,  fix  by  law  the  maximum  of  charges 
for  the  storage  of  grain  in  warehouses  at  Chicago  and  other  places  ,^  y^ 
in  the  State  having  not  less  than  one  hundred  thousand  inhabitants, 
"  in  which  grain  is  stored  in  bulk,  and  in  which  the  grain  of  different 
owners  is  mixed  together,  or  in  which  grain  is  stored  in  such  a  man- 
ner that  the  identity  of  different  lots  or  parcels  cannot  be  accurately 
preserved." 

It  is  claimed  that  such  a  law  is  repugnant  — 

To  that  part  of  Amendment  14  [to  the  Constitution  of  the  United 
States]  which  ordains  that  no  State  shall  "  deprive  any  person  of  life, 
liberty,  or  property,  without  due  procession  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws." 

We  will  consider  the  last  of  these  objections  first. 

Every  statute  is  presumed  to  be  constitutional.  The  courts  ought 
not  to  declare  one  to  be  unconstitutional,  unless  it  is  clearly  so.  If 
there  is  doubt,  the  expressed  will  of  the  legislature  should  be 
sustained. 

The  Constitution  contains  no  definition  of  the  word  "deprive,"  as 
used  in  the  Fourteenth  Amendment.  To  determine  its  signification, 
therefore,  it  is  necessary  to  ascertain  the  effect  which  usage  has 
given  it,  when  employed  in  the  same  or  a  like  connection. 

1  Ace.  :  Budd  v.  New  York,  143  U.  S.  517  ;  Brass  v.  Stoeser,  153  U.  S.  391. 

1 


2  INTRODUCTIOy. 

While  this  provision  of  the  amendment  is  new  in  the  Constitution 
of  the  United  States,  as  a  limitation  upon  the  powers  of  the  States, 
it  is  old  as  a  principle  of  civilized  government.  It  is  found  in  ^lagna 
Charta  and,  in  substance  if  nut  in  form,  in  nearly  or  quite  all  the 
constitutions  that  have  been  from  time  to  time  adojjted  by  the  several 
States  of  the  Union.  By  the  Fifth  Amendment,  it  was  introduced 
into  the  Constitution  of  the  United  States  as  a  limitation  upon  the 
powers  of  the  national  government,  and  by  the  Fourteenth  ns  a 
guaranty  against  any  encroachment  upon  an  acknowledged  right  of 
citizeusliip  by  the  legislatures  of  the  States. 

When  the  people  of  the  United  Colonies  separated  from  Great 
Britain,  they  changed  the  form,  but  not  the  substance,  of  their 
government.  They  retained  for  the  purposes  of  government  all  the 
powers  of  the  British  Parliament,  and  through  their  State  constitu- 
tions, or  other  forms  of  social  compact,  undertook  to  give  practical 
effect  to  such  as  they  deemed  necessary  for  the  common  good  and 
tlie  security  of  life  and  property.  All  the  powers  which  they  re- 
tained they  committed  to  their  respective  States,  unless  in  exjn-essed 
terms  or  by  implication  reserved  to  themselves.  Sul)sequently, 
when  it  was  found  necessary  to  establish  a  national  government  for 
national  pur|)08es,  a  part  of  the  powers  of  the  States  and  of  the 
people  of  the  States  was  granted  to  the  United  States  and  the  i)eople 
of  the  United  States.  This  grant  operated  as  a  further  limitation 
upon  the  jiowers  of  tlie  States,  so  that  now  the  government  of  the 
States  possesses  all  the  powers  of  the  Parliament  of  England,  except 
such  as  have  been  delegated  to  the  United  States  or  reserved  by  the 
I)eople.  The  reservations  by  the  peojjle  are  shown  in  the  prohibi- 
tions of  the  constitutions. 

When  one  becomes  a  member  of  society,  he  necessarily  i)arts  with 
some  rights  or  privileges  which,  as  an  individual  not  affected  by 
his  relations  to  others,  he  might  retain.  "A  body  politic,"  as  aptly 
d<'Hned  in  the  Preamble  of  the  Constitution  of  Massachusetts,  "is 
a  social  compact  by  which  the  wliole  people  covenants  with  each 
citi/en,  and  each  citizen  with  the  wliole  peoi)le,  that  all  shall  be 
governed  by  certain  laws  for  the  common  good."  This  does  not  con- 
fer fK)wer  ujKjn  the  whole  people  to  control  rights  which  are  jmrely 
•  •  ,  .  Thorpe  V.  li.  &  P..  Railroad  Co.,  27  Vt.  14.3; 

i  .         .      1  iif  estalilishment  of  laws  requiring  each  citizen 

to  so  conduct  himself,  and  so  use  his  own  property,  as  not  unnecessa- 

r-'*   ♦•    ••  '•- Oier.     Tliis  is  tlie  very  essence  of  government,  and 

1  .  -M  in  the  maxim  sir  utcrc  tuo  ut  (lUctium  iion  hrdas. 

1  the  police  ])Owers,whicli,  as  was  said  by  Mr. 

<  1  1  the  l/iceiise  (lases,  i>  How.  5.'{.S,  "are  nothing 

more  or  less  than  the  powers  of  government  inherent  in  every  sov- 
iTejgnty,  .  .  .  that  is  to  say,  .  .  .  the  power  to  govern  men  and 
tilings."  Under  these  powers  the  government  regulates  tlic;  conduct 
.  ■  another,  and  tlie  manner  in  wliich  each 

;  .  when  such  regulations  become  necessary 


PUBLIC   CALLINGS.  3 

for  the  public  good.  In  their  exercise  it  has  been  customary  in ' 
England  from  time  immemorial,  and  in  this  country  from  its  first 
colonization,  to  regulate  ferries,  common  carriers,  hackmen,  bakers, 
millers,  wharfingers,  innkeepers,  etc.,  and  in  so  doing  to  fix  a  maxi- 
mum of  charge  to  be  made  for  services  rendered,  accommodations 
furnished,  and  articles  sold.  To  this  day  statutes  are  to  be  found  in 
many  of  the  States  upon  some  or  all  these  subjects ;  and  we  think  it 
has  never  yet  been  successfully  contended  that  such  legislation  came 
within  any  of  the  constitutional  prohibitions  against  interference  with 
private  property.  With  the  Fifth  Amendment  in  force,  Congress, 
in  1820,  conferred  power  upon  the  city  of  Washington  "  to  regulate 
.  .  .  the  rates  of  wharfage  at  private  wharves,  .  .  .  the  sweeping 
of  chimneys,  and  to  fix  tlie  rates  of  fees  therefor,  .  .  .  and  the 
weight  and  quality  of  bread,"  3  Stat.  587,  sect.  7;  and,  in  1848, 
"  to  make  all  necessary  regulations  respecting  hackney  carriages  and 
the  rates  of  fare  of  the  same,  and  the  rates  of  hauling  by  cartmen, 
wagoners,  carmen,  and  draymen,  and  the  rates  of  commission  of 
auctioneers,"  9  id.  224,  sect.  2, 

From  this  it  is  apparent  that,  down  to  the  time  of  the  adoption  of 
the  Fourteenth  Amendment,  it  was  not  supposed  that  statutes  regu- 
lating the  use,  or  even  the  price  of  the  use,  of  private  property 
necessarily  deprived  an  owner  of  his  property  without  due  process 
of  law.  Under  some  circumstances  they  may,  but  not  under  all. 
The  amendment  does  not  change  the  law  in  this  particular;  it  simply 
prevents  the  State  from  doing  that  which  will  operate  as  such  a 
deprivation. 

This  brings  us  to  inqiiire  as  to  the  principles  upon  which  this 
power  of  regulation  rests,  in  order  that  we  may  determine  what  is 
within  and  what  without  its  operative  effect^  Looking,  then,  to  the 
common  law,  from  whence  came  the  right  which  the  Constitution 
protects ,  we  find  that  when  private  property  is  "  affected  with  a  pub- 
lic interest,  it  ceases  to  be  jiiris  privati  only."  This  was  said  by  / 
Lord  Chief  Justice  Hale  more  than  two  hundred  years  ago,  in  his 
treatise  De  Portibus  Maris,  1  Harg.  Law  Tracts,  78,  and  has  been 
accepted  without  an  objection  as  an  essential  element  in  the  law  of 
property  ever  since.  Property  does  become  clothed  with  a  public 
interest  when  used  in  a  manner  to  make  it  of  public  consequence 
and  affect  the  community  at  large.  When,  therefore,  one  devotes 
his  property  to  a  use  in  which  the  public  has  an  interest,  he,  in 
effect,  grants  to  the  public  an  interest  in  that  usCi^and  must  submit 
to  be  controlled  by  the  public  for  the  common  good,  to  the  extent  of 
the  interest  he  has  thus  created^  He  may  withdraw  his  grant  by 
discontinuing  the  use;  but,  so  long  as  he  maintains  the  use,  he  must 
submit  to  the  control. 

Thus,  as  to  ferries,  Lord  Hale  says,  in  his  treatise  De  Jure  Maris, 
1  Harg.  Law  Tracts,  6,  the  king  has  "a  right  of  franchise  or  privi- 
lege, that  no  man  may  set  up  a  common  ferry  for  all  passengers, 
without  a  prescription  time  out  of  mind,  or  a  charter  from  the  king. 


4  INTRODUCTION. 

He  may  make  a  ferry  for  his  own  use  or  the  use  of  his  family,  but 
not  for  the  common  use  of  all  the  king's  subjects  passing  that  way; 
because  it  doth  in  consequence  tend  to  a  common  charge,  and  is 
become  a  thing  of  public  interest  and  use,  and  every  man  for  his 
passage  pays  a  toll,  which  is  a  common  charge,  and  every  ferry 
ought  to  be  under  a  public  regulation,  viz. ,  that  it  give  attendance 
at  due  times,  keep  a  boat  in  due  order,  and  take  but  reasonable  toll; 
for  if  he  fail  in  these  he  is  finable."  So  if  one  owns  the  soil  and 
1  ]:ices  on  both  banks  of  a  stream,  he  cannot  use  them  for 

t;  >es  of  a  public  ferry,  except  upon  such  terms  and  conditions 

as  the  body  politic  may  from  time  to  time  impose;  and  this  because 
I  the  common  good  requires  that  all  public  ways  shall  be  under  the 
control  of  the  public  authorities.  This  privilege  or  prerogative  of 
the  king,  who  in  this  connection  onh*  represents  and  gives  another 
name  to  the  body  i)olitic,  is  not  primarily  for  his  profit,  but  for  the 
protection  of  the  people  and  the  promotion  of  the  general  welfare. 

And,  again,  as  to  wharves  and  wharfingers.  Lord  Hale,  in  his 
treatise  De  I'ortibus  Maris,  already  cited,  says :  — 

"A  man,  for  his  own  private  advantage,  may,  in  a  port  or  town, 
set  up  a  wharf  or  crane,  and  may  take  what  rates  he  and  his  cus- 
tomers can  agree  for  cranage,  wharfage,  housellage,  pesage;  for  he 
doth  no  more  than  is  lawful  for  any  man  to  do,  viz.,  makes  the  most 
of  his  own,  ...  If  the  king  or  subject  have  a  public  wharf,  unto 
which  all  persons  that  come  to  that  port  must  come  and  unlade  or 
lade  their  goods  as  for  the  purpose,  because  they  are  the  wharfs  only 
licensed  by  the  queen,  ...  or  because  there  is  no  wharf  in  that 
jiort,  as  it  may  fall  out  where  a  port  is  newly  erected;  in  that  case 
there  cannot  be  taken  arbitrary  and  excessive  duties  for  cranage, 
wharfage,  pesage,  etc.,  neither  can  they  be  enhanced  to  an  immod- 
enite  rate;  but  the  duties  must  be  reasonable  and  moderate,  though 
.settled  by  the  king's  license  or  charter.  For  now  the  wharf  and 
crane  and  other  conveniences  are  affected  with  a  public  interest, 
an<l  they  cease  to  be  jnriit  privttti  only;  as  if  a  man  set  out  a  street 
in  new  building  on  his  own  land,  it  is  now  no  longer  bare  private 
interest,  but  is  affected  by  a  public  interest." 

This  statement  of  the  law  by  Lord  Hale  was  cited  witli  approba- 
tion and  act^'d  upon  by  Lord  Konyon  at  the  beginning  of  the  present 
(MMitury,  in  liolt  v.  Steniiett,  .S  T.  li.  GOO. 

An<l  the  samt*  has  been  ludd  as  to  warehouses  and  wareliousomon. 
In  AUInutt  v.  Inglis,  V2  East,  51i7,  diioidecl  in  ISIO,  it  appeared  that 
the  Ix>ndon  Dtjck  Company  had  built  wareliouses  in  which  wines  were 
t  '  '    :    •      f)f  charge  as  the  company  and  the  owners 

!  \         .v.irds   the  company  obtained  authority, 

umuT  th'  wareijousing  act,  to  receive  wines  from  imports 

beforu  the  .  .-.  .  upon  the  importation  were  paid;  and  the  question 
WM,  whether  they  could  charge  arbitrary  nates  for  such  storage  or 
:  '  •  "iiiy  compensation.     Upon  this  point 

I.  .  .;.:  — 


PUBLIC   CALLINGS. 


"There  is  no  doubt  that  the  general  principle  is  favored,  both  in 
law  and  justice,  that  every  man  may  fix  whatever  price  he  pleases 
upon  his  own  property,  or  the  use  of  it;  but  if  for  a  particular  pur- 
pose the  public  have  a  right  to  resort  to  his  premises  and  make  use 
of  them,  and  he  have  a  monopoly  in  them  for  that  purpose,  if  he 
will  take  the  benefit  of  that  monopoly,  he  must,  as  an  equivalent, 
perform  the  duty  attached  to  it  on  reasonable  terms.  The  question 
then  is,  whether,  circumstanced  as  this  company  is,  by  the  com- 
bination of  the  warehousing  act  with  the  act  by  which  they  were 
originally  constituted,  and  with  the  actually  existing  state  of  things 
in  the  port  of  London,  whereby  they  alone  have  the  warehousing  of 
these  wines,  they  be  not,  according  to  the  doctrine  of  Lord  Hale, 
obliged  to  limit  themselves  to  a  reasonable  compensation  for  such 
warehousing.  And,  according  to  him,  whenever  the  accident  of  time 
casts  upon  a  party  the  benefit  of  having  a  legal  monopoly  of  landing 
goods  in  a  public  port,  and  where  he  is  the  owner  of  the  only  wharf 
authorized  to  receive  goods  which  happens  to  be  built  in  a  port  newly 
erected,  he  is  confined  to  take  reasonable  compensation  only  for 
the  use  of  the  wharf." 

And  further  on  (p.  539) :  — 

"  It  is  enough  that  there  exists  in  the  place  and  for  the  commodity 
in  question  a  virtual  monopoly  of  the  warehousing  for  this  purpose, 
on  which  the  principle  of  law  attaches,  as  laid  down  by  Lord  Hale 
in  the  passage  referred  to  (that  from  De  Portibus  Maris  already 
quoted),  which  includes  the  good  sense  as  well  as  the  law  of  the 
subject." 

And  in  the  same  case  Le  Blanc,  J.,  said  (p.  541):  — 

"Then,  admitting  these  warehouses  to  be  private  property,  and 
that  the  company  might  discontinue  this  application  of  them,  or  that 
they  might  have  made  what  terms  they  pleased  in  the  first  instance, 
yet  having,  as  they  now  have,  this  monopoly,  the  question  is,  whether 
the  warehouses  be  not  private  property  clothed  with  a  public  right, 
and,  if  so,  the  principle  of  law  attaches  upon  them.     The  privilege, 
then,  of  bonding  these  wines  being  at  present  conferred  by  the  Act  I 
of  Parliament  to  the  company's  warehouses,  is  it  not  the  privilege  j 
of  the  public,  and  shall  not  that  which  is  for  the  good  of  the  public  , 
attach   on  the  monopoly,   that  they  shall  not  be  bound  to  pay  an  ' 
arbitrary  but  a  reasonable  rent?     But  upon  this  record  the  company 
resist  having  their  demand  for  warehouse  rent  confined  within  any 
limit;  and,  though  it  does  not  follow  that  the  rent,  in  fact,  fixed 
by  them  is  unreasonable,  they  do  not  choose  to  insist  on  its  being 
reasonable  for  the  purpose  of  raising  the  question.     Por  this  pur- 
pose, therefore,  the  question  may  be  taken  to  be  whether  they  may 
claim  an  unreasonable  rent.     But  though  this  be  private  property, 
yet  the  principle  laid  down  by  Lord  Hale  attaches  upon  it,  that  when 
private  property  is  affected  with  a  public  interest  it  ceases  to  be 
juris  j^rivati  only ;  and,  in  case  of  its  dedication  to  such  a  purpose 


6  IXTRODUCTIOX. 

as  this,  the  owners  cannot  take  arbitrary  ami  excessive  duties,  but 
the  duties  must  be  reasonable." 

We  have  quoted,  thus  largely,  tlie  \Yords  of  these  eminent  ex- 
pounders of  the  common  law,  because,  as  we  think,  we  find  in  them 
the  principle  winch  sup^MDrts  the  legislation  we  are  now  examining. 
Of  Lord  Hale  it  was  once  said  by  a  learned  Anif  rican  judge :  — 

'•In  England,  even  on  the  rights  of  prerogative,  they  scan  his 
words  with  as  much  care  as  if  they  had  been  found  in  Magna  Charta; 
and,  the  meaning  once  ascertained,  they  do  not  trouble  themselves  to 
search  any  further."     0  Cow.  (X.  Y.)  53G,  note. 

In  later  times,  the  same  principle  came  under  consideration  in  the 
Supreme  Court  of  Alabama.  The  Court  was  called  upon,  in  1841, 
to  decide  whether  the  power  granted  to  the  city  of  Mobile  to  regu- 
late the  weight  and  price  of  bread  was  unconstitutional,  and  it  was 
contended  that  "  it  would  interfere  witli  the  riglit  of  the  citizen  to 
pursue  his  lawful  trade  or  calling  in  the  mode  his  judgment  might 
dictate;"  but  the  court  said,  "there  is  no  motive  .  .  ,  for  this 
'  interference  on  the  part  of  the  legislature  with  the  lawful  actions  of 
■  individuals,  or  the  mode  in  which  ]»rivate  property  sliall  be  enjoyed, 
i  unless  such  calling  affects  tlie  public  interest,  or  private  property  is 
employed  in  a  manner  which  directly  affects  the  body  of  the  people. 
Upon  this  principle,  in  this  State,  tavern-keepers  are  licensed;  .  .  . 
and  the  County  Court  is  required,  at  least  once  a  year,  to  settle  the 
rates  of  innkeepers.  Upon  the  same  principle  is  founded  the  con- 
trol which  the  legislature  has  always  exercised  in  the  establishment 
and  regulation  of  mills,  ferries,  bridges,  turnpike  roads,  and  other 
kindred  subjects."     Mobile  v.  Yuille,  3  Ala.  n.  s.  140. 

Krom  the  same  source  comes  the  power  to  regulate  the  charges  of 
common  carriers,  wliich  was  done  in  England  as  long  ago  as  the 
third  year  of  the  reign  of  William  and  Mary,  and  continued  until 
within  a  comparatively  recent  period.  And  in  the  first  statute  we 
find  the  fidlowing  suggestive  jjreamble,  to  wit:  — 

"Ami  whereas  divers  wagoners,  and  other  carriers,  by  combina- 
tion amongst  themselves,  have  raised  the  prices  of  carriage  of  goods 
in  many  jdaces  to  excessive  rates,  to  the  great  injury  of  the  trade : 
Be  it,  therefore,  enacted,"  etc.  3  W\  &  M.  c.  12,  sect.  24;  3  Stat,  at 
T^.ir-.'  CGreat  Britain),  481. 

<  ommon  carriers  exercise  a  sort  of  pnVilif  otliee,  and  have  duties 
to  perform  in  which  the  jtuldic  is  interested.  New  Jersey  Nav.  Co. 
V.  Merehants'  liank,  G  How.  3.S2.  Their  business  is,  therefore, 
"affected  with  a  public  interest,"  within  the  meaning  of  the  doctrine 
whu'li  Lord  H   "     "  >  foreildy  stated. 

I'.'it  we  ne«  .  ■  further.     Knough  has  already  been  said  to 

.    that,  when  private  property  is  devoted  to  a  j)ul)lic  use,  it  is 

^..:,j. .  »  »'■  I. '.Ill'-  '•■•  "ibition.     It  remains  only  to  ascertain  whether 

the  V.  .•  plaintiffs  in  error,  and  the  business  wliich 

is  carri'  '1  "u  there,  come  within  the  operation  of  tliis  ]iriiif'ij)le. 


PUBLIC   CALLINGS.  7 

It  matters  not  in  this  case  that  these  plaintiffs  in  error  had  built 
their  warehouses  and  established  their  business  before  the  regula- 
tions complained  of  were  adopted.  What  they  did  was  from  the 
beginning  subject  to  the  body  politic  to  require  them  to  conform  to 
such  regulation  as  might  be  established  by  the  proper  authorities 
for  the  common  good.  They  entered  upon  their  business  and  pro- 
vided themselves  with  the  means  to  carry  it  on  subject  to  this 
condition.  If  they  did  not  wish  to  submit  themselves  to  such  inter- 
ference, they  should  not  have  clothed  the  public  with  an  interest  in 
their  concerns.  The  same  principle  applies  to  them  that  does  to  the 
proprietor  of  a  hackney-carriage,  and  as  to  him  it  has  never  been 
supposed  that  he  was  exempt  from  regulating  statutes  or  ordinances 
because  he  had  purchased  his  horses  and  carriage  and  established 
his  business  before  the  statute  or  the  ordinance  was  adopted. 

Justice  Field  (dissenting). ^ 

The  power  of  the  State  over  the  property  of  the  citizen  under 
the  constitutional  guaranty  is  well  defined.  The  State  may  take 
his  property  for  public  uses,  upon  just  compensation  being  made 
therefor.  It  may  take  a  portion  of  his  property  by  way  of  taxation 
for  the  support  of  the  government.  It  may  control  the  use  and  pos- 
session of  his  property,  so  far  as  may  be  necessary  for  the  protection 
of  the  rights  of  others,  and  to  secure  to  them  the  equal  use  and 
enjoyment  of  their  property.  The  doctrine  that  each  one  must  so 
use  his  own  as  not  to  injure  his  neighbor,  —  sic  utere  tuo  ut  aliemim 
non  Icedas,  —  is  the  rule  by  which  every  member  of  society  must 
possess  and  enjoy  his  property;  and  all  legislation  essential  to 
secure  this  common  and  equal  enjoyment  is  a  legitimate  exercise 
of  State  authority.  Except  in  cases  where  property  may  be  de- 
stroyed to  arrest  a  conflagration  or  the  ravages  of  pestilence,  or 
be  taken  under  the  pressure  of  an  immediate  and  overwhelming 
necessity  to  prevent  a  public  calamity,  the  power  of  the  State  over 
the  property  of  the  citizen  does  not  extend  beyond  such  limits. 

It  is  true  that  the  legislation  which  secures  to  all  protection  in 
their  rights,  and  the  equal  use  and  enjoyment  of  their  property, 
embraces  an  almost  infinite  variety  of  subjects.  Whatever  affects 
the  peace,  good  order,  morals,  and  health  of  the  community,  comes 
within  its  scope;  and  every  one  must  use  and  enjoy  his  property 
subject  to  the  restrictions  which  such  legislation  imposes.  What 
is  termed  the  police  power  of  the  State,  which,  from  the  language 
often  used  respecting  it,  one  would  suppose  to  be  an  undefined  and 
irresponsible  element  in  government,  can  only  interfere  with  the 
conduct  of  individuals  in  their  intercourse  with  each  other,  and  in 
the  use  of  their  property,  so  far  as  may  be  required  to  secure  these 
objects.  The  compensation  which  the  owners  of  property,  not  hav- 
ing any  special  rights  or  privileges  from  the  government  in  connec- 
^  Justice  Strong  concurred  in  the  dissent. 


8  INTRODUCTION. 

tion  with  it,  may  demand  for  its  use,  or  for  their  own  services  in 
union  with  it,  forms  no  element  of  consideration  in  prescribing  regu- 
lations for  that  purpose.     If  one  construct  a  building  in  a  city,  the 
State,  or  the  municipality  exercising  a  delegated   power  from  the 
State,  may  require  its  walls  to  be  of  sutticient  thickness  for  the  uses 
intended;  it  may  forbid  the  employment  of  inflammable  materials 
in  its  construction,  so  as  not  to  endanger  the  safety  of  his  neighbors; 
if  designed  as  a  theatre,  church,   or  public  hall,  it  may  prescribe 
ample  means  of  egress,  so  as  to  afford  facility  for  escape  in  case  of 
accident;  it  may  forbid  the  storage  in  it  of  powder,  nitro-glycerine, 
or  other  explosive  material;  it  may  require  its  occupants  to  remove 
daily  decayed  vegetable  and  animal  matter,  which  would  otherwise 
accumulate  and  engender  disease;  it  may  exclude  from  it  all  occu- 
pations and  business  calculated  to  disturb  the  neighborhood  or  infect 
the  air.     Indeed,  there  is  no  end  of  regulations  with  respect  to  the 
use  of  property  which  may  not  be  legitimately  jjrescribed,  having 
for  their  object  the  peace,  good  order,  safety,  and  health  of  the  com- 
munity, thus  securing  to  all  the  equal  enjoyment  of  their  property; 
but  in  estiiblishing  these  regulations  it  is  evident  tliat  compensation 
to  the  owner  for  the  use  of  his  property,  or  for  his  services  in  union 
with  it,  is  not  a  matter  of  any  importance;  whether  it  be  one  sum 
or  another  does  not  affect  the  regulation,  either  in  respect  to  its 
utility   or   mode   of   enforcement.     One   may   go.   in    like   manner, 
through  the  whole  round  of  regulations  authorized  by   legislation, 
State  or  municipal,  under  what  is  termed  the  police  power,  and  in 
no  instance  will  he  find  that  the  compensation  of  the  owner  for  the 
use  of  his  property  has  any  influence  in  establishing  them.     It  is 
only  where  some  right  or  privilege  is  conferred  by  the  government 
or  municipality  upon  the  owner,  which   he  can  use  in   connection 
with  his  property,  or  by  means  of  which  the  use  of  his  property  is 
rendered  more  valuable  to  him,  or  he  thereby  enjoys  an  advantage 
over  otliers,  that  the  compensation  to  be  received  by  him  becomes  a 
legitimate  matter  of  regulation.     Submission  to  the  regulation  of 
comi)en8ation  in  such  cases  is  an  implied  condition  of  the  grant, 
and  the  State,  in  exercising  its  power  of  j^rescribing  compensation, 
only  determines  the  conditions  \\\»m  which  its  concessions  shall  be 
enjoyed.     When  the  privilege  ends,  the  jiower  of  regulation  ceases. 
tJurists  and  writers  on  ])ublic  law  find  autliority  for  the  exercise 
of  tins  iKjlice  j)0wer  of  the  State  and  the  numerous  regulations  which 
it  pre9orilj<?8  in  tlu;  doctrine  already  stated,  that  every  one  must  use 
and  enjoy  his  property  consistently  with  the  rights  of  others,  and 
tl  •  ;ind  enjoyment  by  them   of   tlieir  proj)erty.     "The 

]>'  1   thf!   Stnte,"  says   tlie   Sui>reme  Court  of  Vermont, 

"extends  to  the  protection  of  the  lives,  liml)S,  health,  comfort,  and 
quiet  of  all  j>ersonH,  and  the  protection  of  all  jjropcrty  in  tlie  State. 
According  U)  the  mnxim,  air  utere  tun  uf  ulicnuvi  vov  hvdns,  whicji 
being  of  universal  application,  it  must,  of  course,  be  within  tlie  range 


PUBLIC   CALLINGS.  9 

of  legislative  action  to  define  the  mode  and  manner  in  which  every 
one  may  so  use  his  own  as  not  to  injure  others."  Thorpe  v.  Kutland 
&  Burlingtou  Eailroad  Co.,  27  Vt.  149.  ''We  think  it  a  settled 
principle  growing  out  of  the  nature  of  well-ordered  civilized  society," 
says  the  Supreme  Court  of  Massachusetts,  "that  every  holder  of 
property,  however  absolute  and  unqualified  may  be  his  title,  holds 
it  under  the  implied  liability  that  his  use  of  it  sliall  not  be  injurious 
to  the  equal  enjoyment  of  others  having  an  equal  right  to  the  enjoy- 
ment of  their  property  nor  inju^rious  to  the  rights  of  the  community." 
Commonwealth  v.  Alger,  7  Cush,  84.  In  his  Commentaries,  after 
speaking  of  the  protection  afforded  by  the  Constitution  to  private 
property,  Chancellor  Kent  says:  "But  though  property  be  thus 
protected,  it  is  still  to  be  understood  that  the  law-giver  has  the  right 
to  prescribe  the  mode  and  manner  of  using  it,  so  far  as  may  be  neces- 
sary to  prevent  the  abuse  of  the  right,  to  the  injury  or  annoyance  of 
others,  or  of  the  public.  The  government  may,  by  general  regula- 
tions, interdict  such  uses  of  property  as  would  create  nuisances  and 
become  dangerous  to  the  lives,  or  health,  or  peace,  or  comfort  of 
the  citizens.  Unwholesome  trades,  slaughter-houses,  operations 
offensive  to  the  senses,  the  deposit  of  powder,  the  application  of 
steam-power  to  propel  cars,  the  building  with  combustible  materials, 
and  the  burial  of  the  dead  may  all  be  interdicted  by  law,  in  the 
midst  of  dense  masses  of  population,  on  the  general  and  rational 
principle  that  every  x>er son  ought  so  to  use  his  property  as  not  to  injure 
his  neighbors,  and  that  2>i'ivate  interests  must  be  made  subservient  to 
the  general  interests  of  the  community."     2  Kent,  340. 

The  Italics  in  these  citations  are  mine.  The  citations  show  what 
I  have  already  stated  to  be  the  case,  that  the  regulations  which  the 
State,  in  the  exercise  of  its  police  power,  authorizes  with  respect  to 
the  use  of  property  are  entirely  independent  of  any  question  of  com- 
pensation for  such  use,  or  for  the  services  of  the  owner  in  connec- 
tion with  it. 

There  is  nothing  in  the  character  of  the  business  of  the  defendants 
as  warehousemen  which  called  for  the  interference  complained  of  in 
this  case.  Their  buildings  are  not  nuisances;  their  occupation  of 
receiving  and  restoring  grain  infringes  upon  no  rights  of  others, 
disturbs  no  neighborhood,  infects  not  the  air,  and  in  no  respect  pre- 
vents others  from  using  and  enjoying  their  property  as  to  them  may 
seem  best.  The  legislation  in  question  is  nothing  less  than  a  bold 
assertion  of  absolute  power  by  the  State  to  control  at  its  discretion 
the  property  and  business  of  the  citizen,  and  fix  the  compensation 
he  shall  receive.  The  will  of  the  legislature  is  made  the  condition 
upon  which  the  owner  shall  receive  the  fruits  of  his  property  and 
the  just  reward  of  his  labor,  industry,  and  enterprise.  "That  gov- 
ernment," said  Story,  "can  scarcely  be  deemed  to  be  free  where  the 
rights  of  property  are  left  solely  dependent  upon  the  will  of  the 
legislative  body  without  any  restraint.    The  fundamental  maxims  of 


10  IXTKODUCTIOX. 

a  free  government  seem  to  require  that  the  rights  of  personal  liberty 
and  private  property  should  be  held  sacred."  Wilkesou  r.  Lelaud, 
2  Pet.  657.  The  decision  of  the  Court  in  this  case  gives  unrestrained 
license  to  legislative  will. 

The  several  instances  mentioned  by  counsel  in  the  argument,  and 
by  the  Court  in  its  opinion,  in  which  legislation  has  fixed  the  com- 
pensation which  parties  may  receive  for  the  use  of  their  property 
and  services,  do  not  militate  against  the  views  I  have  expressed  of 
the  power  of  the  State  over  the  property  of  tlie  citizen.  They  were 
mostly  cases  of  i)ublic  ferries,  bridges,  and  turu])ikes,  of  wharfingers, 
hackmeu,  and  draymen,  and  of  interest  on  money.  In  all  these 
cases,  except  that  of  interest  on  money,  which  I  shall  presently 
notice,  there  was  some  special  privilege  granted  by  the  State  or 
municipality;  and  no  one,  I  suppose,  has  ever  contended  that  the 
SUite  has  not  a  right  to  prescribe  the  conditions  upon  which  such 
privileges  should  be  enjoyed.  The  State  in  such  cases  exercises  no 
greater  right  than  an  individual  may  exercise  over  the  use  of  his 
own  i)roperty  when  leased  or  loaned  to  others.  The  conditions  upon 
which  the  privilege  shall  be  enjoyed  being  stated  or  implied  in  the 
legislation  authorizing  its  grant,  no  right  is,  of  course,  imi)aired  by 
their  enforcement.  The  recipient  of  the  privilege,  in  effect,  stijju- 
lates  to  comply  with  the  conditions.  It  matters  not  how  limited 
the  privilege  conferred,  its  acceptfince  implies  an  assent  to  the  regu- 
lation of  its  use  and  the  compensation  for  it.  The  privilege  whicli 
the  hackman  and  drayman  have  to  the  use  of  stands  on  tlie  jiublio 
streets,  not  allowed  to  the  ordinary  coachman  or  laborer  with  teams, 
constitutes  a  sufficient  warrant  for  the  regulation  of  their  fares.  In 
the  case  of  the  wareliousemen  of  Chicago,  no  right  or  privilege  is 
conferred  by  the  government  upon  them;  and  hence  no  assent  of 
theirs  can  be  alleged  to  justify  any  interference  with  their  charges 
for  the  use  of  the  property. 


WHO  ARE   COMMON   CARRIERS.  11 

I.    CARRIERS  OF   GOODS. 

1.    WHO  ARE   COMMON   CARRIERS. 

a.    Public  Calllnfj;  Compensation. 

ALLEN  et  uL,  Appellants,  v.  SACKRIDER  et  al. 

37  N.  Y.  341.     1867. 

Parker,   J,     Tlie  action  was  brought  against  the  defendants  to 
charge  them,  as  common  carriers,  with  damage  to  a  quantity  of  grain 
shipped  by  the  plaintiffs  in  the  sloop  of  the  defendants,  to  be  trans- 
ported from  Trenton,  in  the  province  of  Canada,  to  Ogdensburgh,  in_ 
this  State,  which  accrued  from  tlie  wetting  of  the  grain  in  a  storm. 

The  case  was  referred  to  a  referee ,  who  found  as  follows :  — 

"The  plaintiffs,  in  the  fall  of  1859,  were  partners,  doing  busi- 
ness at  Ogdensburgh.  The  defendants  were  the  owners  of  the  sloop 
I  Creole,'  of  which  Farnham  was  master.  In  the  fall  of  1859  the 
plaintiffs  applied  to  the  defendants  to  bring  a  load  of  grain  from  the 
bay  of  Quiute  to  Ogdensburgh.  The  master  stated  that  he  was  a 
stranger  to  the  bay,  and  did  not  know  whether  his  sloop  had  capacity 
to  go  there.  Being  assured  by  the  plaintiff  that  she  had,  he  engaged 
for  the  trip  at  three  cents  per  bushel,  and  performed  it  with  safety. 
In  November,  1S59,  plaintiffs  again  applied  to  defendants  to  make 
another  similar  trip  for  grain,  and  it  was  agreed  at  one  hundred 
dollars  for  the  trip.  The  vessel  proceeded  to  the  bay,  took  in  a 
load  of  grain,  and  on  her  return  was  driven  on  shore,  and  the  cargo 
injured  to  the  amount  of  .$1346.34;  that  the  injury  did  not  result 
from  the  want  of  ordinary  care,  skill,  or  foresight,  nor  was  it  the" 
result  of  inevitable  accident,  or  what,  in  law,  is  termed  the  act  of 
God.  From  these  facts,  my  conclusions  of  law  are,  that  the  defend- 
ants were  special  carriers,  and  only  liable  as  such,  and  not  as  com- 
mon carriers;  and  that  the  proof  does  not  establish  such  facts  as 
would  make  the  defendants  liable  as  special  carriers;  and,  there- 
fore, the  plaintiffs  have  no  cause  of  action  against  them." 

The  only  qiiestiqniji  the  case  is,  were  the  defendants  common 
carriers?  The  facts  found  by  the  referee  do  not,  I  think,  make  the 
defen^nts  common  carriers.  They  owned  a  sloop;  but  it  does  not 
appear  that  it  was  ever  offered  to  the  public  or  to  individuals  for 
use,  or  ever  put  to  any  use,  except  in  the  two  trips  which  it  macTe 
for  the  plaintiffs,  at  their  special  request.  Nor  does  it  appear  that 
the_defendants  were  engaged  in  the  business  of  carrying  goods,  or 
that  they  held  themselves  out  to  the  world  as  carriers,  or  had  ever 


12  CAKKIEKS   OF   GOODS. 

offered  their  services  as  such.  This  casual  use  of  their  sloop  in 
trausjjorting  plaintiffs'  pro^jerty  falls  short  of  proof  sutticieut  to 
show  them  common  carriers. 

A  common  carrier  was  defined,  in  Gisbourn  v.  Hurst,  1  Salk. 
1*49,*  to  be,  any  man  undertaking,  for  hire,  to  carry  the  goods  of 
all  persons  indifferenthj;"  and  in  Dwight  v.  Brewster,  1  Pick.  50 
[16],  to  be  one  who  undertakes,  for  hire,  to  transport  the  goods  of 
such  as  choose  to  emjdoy  hiniy  from  ])lace  to  place."  In  Orange  Bank 
V.  Brown,  3  Wend.  IGl,  Chief  Justice  Savage  said:  "Every  person 
who  undertakes  to  carry,  for  a  compensation,  the  fjoods  of  all  j)er- 
sons  iruliffereiitli/,  is,  as  to  the  liability  imposed,  to  be  considered  a 
common  carrier.  The  distinction  between  a  common  carrier  and  a 
private  or  special  carrier  is,  that  the  former  holds  himself  out  in 
r,.>,im"H,  that  is,  to  all  persons  who  choose  to  employ  him,  as  ready 
iM  (Miry  forji^ir^  wliile  the  latter  agrees^n^s^ine^iecial  case,  with 
some  private  individual,  to  carry  for  hire."  Story  on  Contracts, 
§  752  a.  The  employment  of  a  common  carrier  is  a  public  one, 
and  he  assumes  a  public  duty,  and  is  bound  to  receive  and  carry 
the  goods  of  any  one  who  offers.  "On  the  whole,"  says  Professor 
Parsons,  "  it  seems  to  be  clear  that  no  one  can  be  considered  as  a 
common  carrier  unless  he  has,  in  some  way,  held  liimself  out  to  tlie 
public  as  a  carrier,  in  such  manner  as  to  render  him  liable  to  an 
action  if  he  should  refuse  to  carry  for  any  one  Avho  wished  to  employ 
him."     2  Pars,  on  Cont.  [5th  ed.]  IGG,  note. 

The  learned  counsel  for  the  apjiollant  in  effect  recognizes  the 
necessity  of  the  carrier  holding  himself  out  to  the  world  as  such, 
in  order  to  invest  him  with  the  character  and  resijonsibilities  of  a 
common  carrier;  and,  to  meet  that  necessity,  says:  "The 'Creole' 
was  a  freight  vessel,  rigged  and  manned  suitably  for  carrying  freiglit 

1  GISBOURN  V.   HTRST. 
COMMON   BKNCII,  1  Salk.  249.      1710. 

Id  Iroctr  upon  a  special  verdict  the  case  was,  The  gocjil.s  in  the  declai-ation  were  tlie 
pUintifTit,  and  l>y  him  delivered  in  London  to  one    lUchardson,   to  carry  down  to 

liini'"''  ••■•      T' •-   (;:.  1.  ...1-....  ...v    i,..t    • innion   carri-'    '■'"    '■■'■  -.'>>■.  vt,,.!]  time 

Ijui  I.  turn  t()"l  lid  {jet 

•■  .  ;..;  ;i  rea-sonnl/li   j,.  ..      '..,..;.  ...   iiUirned 

■I to  the  bfirn,  where  it  contijiued  two  nights 
.....  II..    ...,.■. ...I..  ...i.,-   ..lid  (liHtniined  the  ehee.se  for  rent  due  for  the 

hoi:  t  an  inn,  but  a  private  houHe  ;  and  it  wn.s  aj,'reed  ;>(•;•  cur.     Thnt 

({o<'  .'iV  ]i«rHon  exercising  a  public  trade  or  (•mployment  to  Iks  carried, 

wr  i  in  the  wayi)f  IiIh  trade  or  emjdoj',  are  for  that  time  under  a  legal 

1  from  (liHtr-      ^  '  "  ■  t  ;  hut  this  Indng  a  private  uniierfiiking 

•ntion  ;  ai.  :  solved,  That  any  man  undert.iking  fur 

"  •  —  •     i.r.u..  1.  uily,  as  in  thin  case,  i.s,  as  to  tluK  piivi- 

liiiM  given    the   privilege   in   resiMJct  of  the  trader, 

!■  1  ;  and  the  cane  in  (,"ro.  Kl.  5flfl,  is  stronger.     Two 

tr«  .  a  iii'ighlior'H  1x>ani,  which  he  kept  for  his  private  use, 

and  ..  "  .  ■  .......    ..■..■.  II. .t  Ik,'  (liHtrained. 


WHO   AKE   COMMON   CARRIERS.  13 

from  port  to  port;  her  appearance  in  the  harbor  of  Ogdensburgh, 
waiting  for  business,  was  an  emphatic  advertisement  that  she  sought 
employment."  These  facts  do  not  appear  in  the  findings  of  the 
referee,  and,  therefore,  cannot,  if  they  existed,  help  the  appellants 
upon  this  appeal. 

It  is  not  claimed  that  the  defendants  are  liable,  unless  as  common 
carriers.  Very  clearly  they  were  not  common  carriers;  and  the 
judgment  should,  therefore,  be  affirmed. 


GOEDON  V.  HUTCHINSON. 
1  W.  &  S.  (Pa.)  285.     1841. 

This  was  an  action  on  the  case  by  James  B.  Hutchinson  against 
James  Gordon.     The  defendant  pleaded  non  assumjjsit. 

The  facts  were  that  the  defendant^  bein£  a  farmer^  ajvplied  at  the 
store  of  the  plaintiff  for  the  hauling  of  goods  from  Lewistown  to 
Bellefonte,  upon  his  return  from  the  former  place,  where  he  was 
going  with  a  load  of  iron.  He_received  an  order  and  loaded  the 
goods.  On  the  way  the  head  came  out  of  a  hogshead  of  molasseSj 
and  it  was  wholly  lost.  In  this  action  the  plaintiff  claimed  to 
recover  the  price  of  it.  There  was  much  proof  on  the  subject  of  the 
occasion  of  the  loss :  whether  it  was  in  consequence  of  expansion  of 
the  molasses  from  heat,  or  of  negligence  on  the  part  of  the  wagoner, 
of  which  there  was  strong  evidence. 

The  defendant  took  the  ground  that  he  was  not  subject  to  the 
responsibilities  of  a  common  carrier,  but  only  answerable  for  negli- 
gence, inasmuch  as  he  was  only  employed  occasionally  to  carry  for 
hire.  But  the  Court  below  (Woodward,  President)  instructed  the 
jury  that  the  defendant  was  answerable  upon  the  principles  which 
govern  the  liabilities  of  a  common  carrier. 

GiBsox,  C.  J.  The  best  definition  of  a  common  carrier  in  its  appli- 
cation to  the  business  of  this  country  is  that  which  ]\[r.  Jeremy 
(Law  of  Carriers,  4)  has  taken  from  Gisbourn  v.  Hurst,  1  Salk.  249 
[12],  which  was  the  case  of  one  who  was  at  first  not  thought  to  be 
a  common  carrier  only  because  he  had,  for  some  small  time  before, 
brought  cheese  to  London,  and  taken  such  goods  as  he  could  get  to 
carry  back  into  the  country  at  a  reasonable  price;  but  the  goods 
having  been  distrained  for  the  rent  of  a  barn  into  which  he  had  put 
his  wagon  for  safe  keeping,  it  was  finally  resolved  that  any  man 
undertaking  to  carry  the  goods  of  all  persons  indifferently,  is,  as  to 
exemption  from  distress,  a  common  carrier.  Mr.  Justice  Story  has 
cited  this  case  (Commentaries  on  Bail.  322)  to  prove  that  a  common 
carrier  is  one  who  holds  himself  out  as  ready  to  engage  in  the  trans- 
portation of  goods  for  hire  as  a  business,  and  not  as  a  casual  occu- 


14  CARRIERS   OF   GOODS. 

pation />ro  hac  vice.  My  conclusion  from  it  is  different.  I  take  it  a 
wagoner  who  carries  goods  for  hire  is  a  common  carrier,  whether 
transiK»rtiition  be  his  principal  and  direct  business,  or  an  occasional 
and  incidental  employment.  It  is  true  the  Court  went  no  further 
*  than  to  say  the  wagoner  was  a  common  carrier  as  to  the  privilege  of 
exemption  from  distress;  but  his  contract  was  held  not  to  be  a  pri- 
vate undertaking  as  the  Court  was  at  first  inclined  to  consider  it,  but 
a  public  engagement,  by  reason  of  his  readiness  to  carry  for  any  one 
who  would  employ  him,  without  regard  to  his  other  avocations,  and 
he  would  consequently  not  only  be  entitled  to  the  privileges,  but  be 
subject  to  the  responsibilities  of  a  common  carrier;  indeed,  they  are 
correlative,  and  there  is  no  reason  why  he  should  enjoy  the  one 
without  being  burdened  with  the  other.  Chancellor  Kent  (2  Com- 
mentaries, 51)7)  states  the  law  on  the  authority  of  Kobinson  i\ 
Dunmore,  2  Bos.  &  Pul.  416,  to  be  that  a  carrier  for  hire  in  a  pai'- 
ticular  case,  not  exercising  the  business  of  a  common  carrier,  is 
answerable  only  for  ordinary  neglect,  unless  he  assume  the  risk  of 
a  common  carrier  by  express  contract;  and  Mr.  Justice  Story  (Com. 
on  Bail.  2'JS)  as  well  as  the  learned  annotator  on  Sir  William  Jones's 
Essay  (Law  of  Bail.  1U3  d.  note  3)  does  the  same  on  the  authority 
of  the  same  case.  There,  however,  the  defendant  was  held  liable 
on  a  special  contract  of  warranty,  that  the  goods  should  go  safe; 
and  it  was  therefore  not  material  whether  he  was  a  general  carrier 
or  not.  The  judges,  indeed,  said  that  he  was  not  a  common  carrier, 
but  one  who  had  put  himself  in  the  case  of  a  common  carrier  by  his 
agreement;  yet  even  a  common  carrier  may  restrict  his  responsibility 
by  a  special  acceptance  of  the  goods,  and  may  also  make  himself 
answerable  by  a  special  agreement  as  well  as  on  the  custom.  The 
question  of  carrier  or  not,  therefore,  did  not  necessarily  enter  into 
the  inquiry,  and  we  cannot  sujjpose  the  judges  gave  it  their  prin- 
cipal attention. 

liut  rules  which  have  received  their  form  from  the  business  of  a 
f>eoplo  whose  occupations  are  definite,  regular,  and  fixed  must  be 
applied  with  much  caution  and  no  little  qualification  to  the  business 
of  a  people  whose  occupations  arc  vague,  desultory,  and  irregular. 
In  England,  one  who  holds  himself  out  as  a  general  carrier  is  bound 
to  take  employment  at  the  current  ]»rice;  but  it  will  not  be  thouglit 
that  he  is  bound  to  do  so  here.  Notliing  was  more  common  formerly 
than  for  the  wagoners  to  lie  by  in  I'iuladelpliia  for  a  rise  of  wages. 
In  ?^n){land  the  obligation  to  carry  at  request  U[)on  the  carrier's  par- 
ticular route  is  the  criterifjii  of  tlie  ])rofession,  but  it  is  certainly  not 
«"  1     '  'ania,  we  had  no  carriers  exclusively  between 

Y-^  ■'■  the  estal)lishment  of  our   public   lines  of 

tr  and  according  to  the  English  j)rinciple  we  could  have 

h.i-.  ...    ,ji  carriers,  for  it  was  not  ])retended  tliat  a  wagoner 

could  be  com|ielled  to  load  for  any  part  of  tlie  Continent.     But  the 
IX)licy  of  holding  him  answerable  as  an  insurer  was  more  obviously 


WHO   ARE   COMMON   CARRIERS.  15 

dictated  by  the  solitary  and  mountainous  regions  through  which  his 
course  for  the  most  part  lay,  than  it  is  by  the  frequented  thorough- 
fares of  England.  But  the  Pennsylvania  wagoner  was  not  always 
such  even  by  profession.  No  inconsiderable  part  of  the  transporta- 
tion was  done  by  the  farmers  of  the  interior,  who  took  their  produce 
to  Philadelphia,  and  procured  return  loads  for  the  retail  merchants 
of  the  neighboring  towns;  and  many  of  them  passed  by  their  homes 
with  loads  to  Pittsburg  or  Wheeling,  the  principal  points  of  embark- 
ation on  the  Ohio.  But  no  one  supposed  they  were  not  responsible 
as  common  carriers;  and  they  always  compensated  losses  as  such. 
They  presented  themselves  as  applicants  for  employment  to  those 
who  could  give  it;  and  were  not  distinguishable  in  their  appearance, 
or  in  their  equipment  of  their  teams,  from  carriers  by  profession.  I 
can  readily  understand  why  a  carpenter,  encouraged  by  an  employer 
to  undertake  the  job  of  a  cabinet-maker,  shall  not  be  bound  to  bring 
the  skill  of  a  workman  to  the  execution  of  it;  or  why  a  farmer,  tak- 
ing his  horses  from  the  plough  to  turn  teamster  at  the  solicitation  of 
his  neighbor,  shall  be  answerable  for  nothing  less  than  good  faith; 
but  I  am  unable  to  understand  why  a  wagoner  soliciting  the  employ- 
ment of  a  common  carrier,  shall  be  prevented,  by  the  nature  of  any 
other  employment  he  may  sometimes  follow,  from  contracting  the 
responsibility  of  one.  What  has  a  merchant  to  do  with  the  private 
business  of  those  who  publicly  solicit  employment  from  him?  They 
offer  themselves  to  him  as  competent  to  perform  the  service  required, 
and,  in  the  absence  of  express  reservation,  they  contract  to  perform 
it  on  the  usual  terms,  and  under  the  usual  responsibility.  Now, 
what  is  the  case  here?  The  defendant  is  a  farmer,  but  has  occa- 
sionally done  jobs  as  a  c^arrier.  That,  however,  is  immaterial.  He 
applied  for  the  transportation  of  these  goods  as  a  matter  of  busi- 
ness,  and  consequentlyon  the  usual  conditions.  His  agencywas  noF 
sought  in  consequence  of  a  special  confiden'ce  reposed  in  him  — 
there  was  nothing  special  in  the  case  —  on  the  contrary,  the  employ- 
ment was  sought  by  himself,  and  there  is  nothing  to  show  that  it 
was  given  on  terms  of  diminished  responsibility.  There  was  evi- 
dence of  negligence  before  the  jury;  but,  independent  of  that,  w_e 
are  of  opinion  that  he  is  liable  as  an  insurer. 

Judgment  affirmed.'^ 


CITIZENS'   BANK  v.   NANTUCKET   STEAMBOAT   CO. 

2  Story  (U.  S.  C.  C),  16.     1811. 

Story,  Circuit  Justice.  .   .   .  The  suitjs  in  substance  brought  to 
recover  from  the  steamboat  company  a  suraof  money,  in  bank  bills 
and  accounts,  belonging  to  the  Citizens'  Bank,  whinb  ^vas  intrusted 
1  Ace.  :  Moss  V.  Bettis,  4  Heisk.  661.     Contra:  Fish  v.  Chapman,  2  (Ja.  349. 


16  CAKRIEKS   OF   GOODS. 

by  the  cashier  of  the  bank  to  the  master  of  the  steamboat,  to  be 
onrr:-- 1  in  tl;-^  steamboat  from  the  islam!  of  Nantucket  to  the  port  of 
N  .  across  the  intermediate  sea,  which  money  has  been 

l...>i,.i.iu  u.  ver  duly  delivered  by  the  master.  .  .   . 

Having  stated  these  preliminary  doctrines,  which  seem  necessary 
to  a  just  understanding  of  the  case,  we  may  now  proceed  to  a  direct 
consideration  of  the  merits  of  the  present  controversy.  And  in  my 
judgment,  although  there  are  several  principles  of  law  involved  in 
•'  •■■'■  '"^  mainly  turns  upon  a  matter  of  fact;  namely,  whether  the 
•  company;^ were^^r  held  themselves  out  to  the  public  to  be, 
coiiiiiiuu  carriers  of  money  and  bank  bills,  as  well  as  of  passengers 
and  goods  and  merchandise,  in  the  strict  sense  of  the  latter  terms; 
or  the  employment  of  the  steamboat  was,  so  far  as  the  company  are 
concerned,  limited  to  the  mere  transportation  of  passengers  and 
goods  and  mercliandise  on  freight  or  for  hire;  and  money  and  bank 
bills,  although  known  to  the  company  to  be  carried  by  the  master, 
were  treated  by  them  as  a  mere  personal  trust  in  the  master  by  the 
owners  of  the  money  and  bank  bills,  as  their  private  agents,  and  for 
which  the  company  never  held  themselves  out  to  the  public  as 
resiK)nsible,  or  as  being  witliin  the  scope  of  their  employment  and 
business  as  carriers. 

T'i.-  L^muiid  of  the  defence  of  the  company  is,  that,  in  point  of 
;  1  the  transportation  of  money  and  bank  bills  by  tlie 

I  11  known  to  them,  yet  it  constituted_no  part  of  their 

I  Mr  employment;  that  they  never  were,  in  fact, common 

carriers  ot  ijioiiey^  or  bank  bills;  thatjthey  never  held  themselves  out 
to  the  public  as  sucli,  and  never  received  aiiy^  compensation  there- 
for; that  the  master,  in  receiving  and  transporting  money  and  bank 
bills,  acted  as  the  mere  ])rivate  agent  of  tlie  particular  parties,  who 
intrusted  the  same  to  him,  and  not  as  the  agent  of  the  company  or 
by  their  authority;  that,  in  truth,  he  acted  as  a  mere  gratuitous 
bailee  or  mandatary  on  all  such  occasions;  and  even  if  he  stipulated 
for,  or  received,  any  hire  or  compensation  for  such  services,  he  did 
so,  not  as  the  agent  of  or  on  account  of  the  company,  but  on  his  own 
private  account,  as  a  matter  of  agency  for  the  i)articular  bailors  or 
mandators.  Now,  certainly,  if  these  matters  are  substantially  made 
out  by  the  evidence,  they  constitute  a  complete  tlefencejigainst  the 
present  suit. 


DWirjiiT  r.   r.i:i:\vsTER. 

1  rick.  (Mnss.)  .")().     IS-J'J. 


TiiK  defendants  contended  that  they  were  not  liable  as  common 
carriers,  tlieir  business  being  the  conveyance  of  passengers  and  their 
luggage:  that  tlie  t'lking  small  packages  was  an  affair  of  the  drivers. 


WHO   ARE    COMMON    CARRIERS.  17 

who  received  the  compensation,  and  who  were  answerable  for  negli- 
gence only,  and  that  the  proprietors  were  not  responsible,  though  it 
appeared  that  less  wages  were  paid  to  the  drivers,  in  consequence  of 
the  opportunity  they  had  of  earning  small  sums  of  money  in  tliis 
way;  whereas  large  packages  were  usually  entered  on  the  way-bill, 
and  the  proprietors  received  the  compensation  for  the  trans- 
portation. 

Parker,  C.  J.  ...  On  the  second  count,  which  charges  the 
defendants  as  common  carriers,  we  think  the  facts  proved  are  suifi« 
cient  to  constitute  them  such.  Packages  were  usually  taken  in  the 
stage-coach  for  transportation;  large  packages  were  entered  in  the 
book  kept  for  the  proprietors,  and  compensation  taken  for  their  use. 
That  the  principal  business  was  to  carry  the  mail  and  passengers 
is  no  reason  why  the  proprietors  should  not  be  common  carriers  of 
merchandise,  etc.  A  common  carrier  is  one  who  undertakes,  for 
hire  or  reward,  to  transport  the  goods  of  such  as  choose  to  employ 
him  from  place  to  place.  This  may  be  carried  on  at  the  same  time 
with  other  business.  The  instruction  of  the  judge  in  this  particular, 
that  the  practice  of  taking  parcels  for  hire,  to  be  conveyed  in  the 
stagecoach,  constituted  the  defendants  common  carriers,  we  think 
was  right. 


PLINT,  ETC.  E.  CO.    V.    WEIR. 
37  Mich.  111.     1876. 

OooLEY,  C.  J.  .  .  .  The  evidence  was  put  into  the  case  by  stipu- 
lation, and  in  the  main  the  facts  are  undisputed.  It  appears  that 
the  plaintiff  took  passage  upon  the  cars  of  the  defendant  from  Detroit 
to  Saginaw,  and  that  he  had  with  him  a  trunk,  which  he  avers  con- 
tained the  articles  of  personal  property  described  in  the  declaration. 
This  trunk  has  been  lost,  but  whether  through  any  fault  of  the  rail- 
way company  is  in  dispute.  It_is,  however,  shown  by  the  plaintilF 
himself  that  both  he  and  his  trunk  were  being  carried,  not  for  hire 
and  reward,  but  gratuitously.  There  was  consequently  no  contract 
for  carriage  by  the  railway  company,  and  this  action,  which  is  in 
assumpsit,  cannot  be  maintained.^  Xolton  v.  Western  R.  Corp.,  15 
X."  Y.  444,  446. 

There  can  be  no  question  that  a  railway  company  which  receives 
property  for  gratuitous  carriage  assumes,  like  any  other  gratuitous 
bailee,  certain  duties  in  respect  to  it,  and  that  a  suit  will  lie  for  a 
failure  to  perform  these  duties.  But  the  obligation  in  such  case  is_ 
quite  different  from  the  obligation  of  a  bailee  who,  for  a  considera- 
tion received  or  promised,  undertakes  to  carry  or  to  |)erform  any 
other  servicewith  respect  to  the  subject  of  the  bailment.  In  the 
2 


IS  CAKUIERS    OF    GOODS. 

latter  case  the  terms  of  the  contract,  if  au  express  contract  was 
made,  will  be  the  measure  of  the  duties  to  be  performed;  and  in  the 
absence  of  any  express  contract  the  law  itself  will  impose  upon  the 
■  ■  .•  a  higher  degree  of  care  and  watclifulness  than  it  demands 
.m  who,  for  the  mere  accommodation  of  the  bailor,  undertakes 
the  charge  of  his  goods.  The  gratuitous  bailee  must  not  be  reck- 
less; he  mu.st  observe  such  care  as  may  reasonably  be  required  of 
him  under  the  circumstances;  but  it  is  not  the  same  care  which  is 
required  of  the  bailee  who,  for  his  own  profit,  assumes  the  dut}-. 
This  is  elementary,  and  is  so  reasonable  that  it  requires  no  discus- 
sion. When  care  is  bargained  for  and  compensated,  something  is 
expected  and  is  demandable  beyond  what  can  be  required  of  him 
who  undertakes  a  merely  gi-atuitous  favor. 

Reliance  is  placed  by  the  plaintiff  upon  certain  cases  which  are 
supposed  to  have  decided  that  the  obligation  of  a  railway  comjiany 
to  carry  safely  is  unaffected  by  the  fact  that  no  fare  was  j^aid. 
None  of  them  so  decides.  .  .  . 

But  we  do  not  care  to  comment  upon  these  cases,  or  to  say  more 
>  '    "         'lian  this:  that  tlie  right  of  recovery  in  each  of  them  where 
i^e  was  gratuitous  was  based  upon  the  duty  of  one  who 
s  to  carry  pe rsons^  to  carry  them  safely,  —  a  duty  indepen - 
.ny  contractj^d  which  the  carrier  owes,  not  exclusively  to 
"U  being  carried^  but  also  to  the  State  itself.     Tn  sucli  a 
c;i.>f,  especially  if  the  mode  of  carriage  is  peculiarly  subject  to  dan- 
gerous and  destructive  accidents,  the  carrier  may  well  be  required 
to  observe  a  high  degree  of  care  and  diligence.     But  where  only 
]-  ■'••••■  is  in  question,  there  is  no  reason  why  any  different  rule 
•  applied  to  a  railroad  company  taking  charge  of  property 
gr.iluituusly,  to  that  which  governs  the  relation  in  the  case  in  an^ 
•  >t]i.r  '.'iMtuitous  bailment.     Nor  is  it  material  that  the  gratuitous 
"f  a  trunk  was  accompanied  by  the  gratuitous  carriage  of  a 
p'T-i'ii;  the  duty  to  carry  the  trunk  safely  was  only  the  same  that 
the  law  would  have  imposed  had  the  trunk  been  taken  upon  a  freight 
train  gratuitously;  and  no  greater  degree  of  care  could  be  demanded 
in  one  case  than  in  the  other.     It  may  therefore  be  conceded  that 
the  same  extreme  care  is  demandable  of  carriers  of  persons  in  all 
cases  where  injuries  to  persons  are  in  question,  and  the  concession 
will  not  in  any  manner  afffct  the  present  suit. 

Hut  as  the  plaintiff  lias  brought  his  action,  not  in  tort,  but  upon 
contract,  there  can  be  no  recovery  under  his  declaration,  and  the 
extent  of  the  duty  wliich,  under  the  circumstances,  was  imposed 
upon  the  railway  company  becomes  immaterial.  The  judgment  must 
N*  reversr-d,  with  costs,  but  as  the  fiicts  are  not  eml)0(lie(l  in  a  find- 
ing ]*y  the  circuit  judge,  so  as  to  permit  of  our  entering  final  judg- 
ment in  tliis  court,  a  new  trial  mu.st  be  ordered. 


WHO   ARE   COMMON   CARRIERS.  19 

PIERCE   V.    MILWAUKEE,  etc.  R.  CO. 
23  Wis.  387.     18G8. 

Action  to  recover  the  value  of  eight  bundles  of  bags,  which  had 
been  in  use  for  two  seasons  in  transporting  grain  from  Lake  City, 
Minnesota,  to  Genoa,  Wisconsin,  by  way  of  the  river  and  the 
defendant's  railway.  The  complaint  alleged  that  the  bags  were 
delivered  by  the  packet  company  doing  business  on  the  river,  to  the 
defendant  at  La  Crosse ;  and  that  defendant,  as  a  common  carrier, 
received  said  bags  to  be  safely  carried  by  it  over  its  railway,  and 
delivered  at  Milwaukee  to  the  plaintiff,  "  for  a  reasonable  compensa- 
tion to  be  paid  by  the  plaintifE  therefor."  Answer,  a  general  denial. 
At  the  trial  defendant  sought  to  avoid  liability,  as  a  common  carrier, 
for  the  loss  of  the  bags,  by  showing  a  uniform  and  long-established 
custom  of  the  river  and  railway,  that  all  bags  used  in  the  transporta- 
tion of  grain  on  said  river  or  railway  were  carried  free  of  charge, 
when  empty,  claiming  that  for  bags  so  carried  it  could  be  held 
responsible  only  in  case  of  gross  negligence. 

Paine,  J.  After  carefully  considering  the  original  briefs  of 
counsel  and  the  arguments  upon  the  rehearing,  I  have  come  to  the 
conclusion  that  the  carrying  of  the  bags  of  the  plaintiff  by  the  com- 
pany cannot  be  considered  as  gratuitous,  whether  the  custom  was 
only  to  return  bags  free  that  had  gone  over  the  road  filled,  or 
whether  it  was  a  general  custom  to  carry  the  bags  of  customers  free 
both  ways,  without  regard  to  the  question  whether,  at  any  particu- 
lar time,  they  were  returning  from  a  trip  on  which  they  had  passed 
over  the  road,  filled  or  not.  If  such  a  relation  were  created  by  an 
express  contract,  instead  of  being  based  upon  a  custom,  it  would 
seem  clear  that  there  would  be  a  sufficient  consideration  for  the 
agreement  to  carry  the  bags.  If  a  written  contract  should  be  signed 
by  the  parties,  in  which  the  one  should  agree  to  give  the  company 
the  transportation  of  his  grain  at  its  usual  rates,  and  the  company 
should  agree  in  consideration  thereof  to  carry  the  grain  at  those 
rates,  and  also  to  carry  the  bags  both  ways  whenever  the  customer 
might  desire  it,  without  any  further  charge,  there  can  be  no  doubt 
that  the  giving  to  the  company  his  business,  and  the  payment  of 
the  regular  freight,  would  be  held  to  constitute  the  consideration  for 
this  part  of  the  agreement  on  the  part  of  the  company.  But  if  it 
would  be  so  in  such  a  case,  it  is  equally  so  when  the  same  under- 
standing is  arrived  at  through  the  means  of  a  custom.  The  com- 
pany, by  establishing  such  a  custom,  makes  the  proposition  to  all 
persons,  that  if  they  will  become  its  customers,  it  will  carry  their 
bags  both  ways  without  any  other  compensation  than  the  freight 
upon  the  grain.     Persons  who  become  its  customers  in  view  of  such 


20  CARIUERS   OF   GOODS. 

a  custom  do  so  with  that  uiulerstamling.  And  the  patronage  and 
the  freights  paid  are  the  consideration  for  carrying  the  bags.  The 
company,  in  making  such  a  proposition,  must  consider  that  this 
additional  privilege  constitutes  an  inducement  to  shippers  to  give  it 
their  freight.  Xiid  it  must  expect  to  derive  a  sufficient  advantage 
from  an  increase  of  business  occasioned  by  such  inducement,  to  com- 
pensate it  for  such  transportation  of  the  bags.  And  it  ought  not  to 
be  allowed,  when  parties  have  become  its  customers  with  such  an 
understanding,  after  losing  their  bags,  to  shelter  itself  under  the 
pretext  that  the  carrying  of  the  bags  was  a  mere  gratuity,  and  it  is 
therefore  liable  only  for  gross  negligence. 

It  makes  no  difference  that  the  custom  is  described  as  being  to 
carry  the  bags  free.  In  determining  whether  they  are  really  car- 
ried "free"  or  not,  the  whole  transaction  between  the  parties  must 
be  considered.  And  when  this  is  done,  it  is  found  that  all  that  is 
meant  by  saying  that  the  empty  bags  are  carried  free,  is,  that  the 
customers  pay  no  other  consideration  for  it  than  the  freight  derived 
from  the  business  they  give  the  company.  But  this,  as  already  seen, 
is  sufficient  to  prevent  the  transportation  of  the  bags  from  being 
gratuitous.  Smith  v.  K.  K.  Co.,  24  X.  Y.  222;  see  also  Bissel  i\ 
Railroad  Co.,  25  id.  442.  .  .  . 

I  can  see  no  ground  for  any  such  difficulty  as  that  suggested 
by  the  appellant's  counsel  on  the  re-argument.  He  said,  if  this 
undertaking  to  return  bags  free  was  to  be  considered  a  matter 
of  contract  on  tlie  part  of  the  company,  it  would  be  unable  to 
collect  its  freight  on  delivering  grain  upon  the  ground  that  its 
contract  was  not  then  completed.  But  this  could  not  be  so.  The 
company,  on  delivering  the  grain,  parts  with  the  possession  of 
the  property  to  the  shi])per  or  his  consignee.  And  on  doing  that,  it 
is  of  course  entitled  to  its  freight.  And  its  agreement  to  return  tlie 
bags  without  further  charge,  or  to  carry  them  free  both  ways  when- 
ever its  customer  should  deliver  them  empty  for  tliat  purpose,  could 
not  have  the  effect  of  destroying  this  right.  The  contract  would  be 
construed  according  to  the  intention  of  the  parties.  See  Angell  on 
Carriers,  §  309,  note  3,  and  cases  cited.  And  here  it  would  be 
very  obvious  that  neither  of  the  parties  contemplated  any  relin- 
qui.shment  by  the  company  of  its  right  to  freight  on  delivering  the 
trr.'iin.  The  transaction  for  that  purpose  woiild  be  distinct.  Here 
Milant's  evidence  showed  that  tlie  jdaintiff  was  a  "customer." 
I  :ii»any  claims  that  he  had  complied  witli  tlie  custom  on  his 

part,  80  as  to  make  it  applicable  to  him.  But  if  lie  had  done  so,  as 
that  constitutes  a  sufficient  consideration  to  prevent  the  carrying  of 
his  bags  from  Vn-'ing  gratuitous,  the  comjiany  is  liable. 

Bv  TiiK  CoL-KT.    The  judgment  is  affirmed,  witli  costs. 


WHO   ARE   COMMON   CARRIERS.  21 

GRAY  V.    MISSOURI   RIVER  PACKET   CO.,  Appellant. 
64  Mo.  47.     1876. 

Norton,  Judge.  This  was  an  action  in  which  defendant  is  sought 
to  be  charged  as  a  common  carrier  for  transporting  a  jack,  the  prop- 
erty of  plaintiff,  in  so  careless  a  manner  as  to  occasion  his  death. 
The  defendant  by  way  of  defence  denied  negligence  as  charged,  and 
set  up  in  his  answer  as  a  further  defence  that  the  shipment  of  the 
jack  was  to  be  made  gratuitously  and  without  compensation,  and  not 
for  hire 

The  following  instruction  asked  by  defendant  was  refused  by  the 
Court :  "  If  the  jury  believe  from  the  evidence  that  the  jack  in  con- 
troversy was  to  be  transported  from  Berlin  on  the  south  side  of  the 
Missouri  River  to  Grider's  landing  on  the  north  side  of  said  river  by 
said  defendants,  without  hire  or  reward  from  plaintiff  and  solely 
and  gratuitously  to  accommodate  plaintiff,  then  the  defendant  is  not 
liable  in  this  action  unless  the  jury  should  further  find  that  the 
defendant  was  guilty  of  gross  negligence,  which  the  Court  defines  to 
be  that  omission  of  care  which  even  the  most  inattentive  and  thought- 
less never  fail  to  take  of  their  own  concerns."  The  instruction 
asserted  a  correct  principle  of  law  as  applicable  to  mere  manda- 
taries. It  was  nevertheless  rightfully  refused  by  the  Court,  because 
under  the  view  we  take  of  the  case,  as  disclosed  in  the  record,  there 
was  no  evidence  on  which  to  base  it.  It  appears  from  the  evidence 
that  plaintiff  applied  to  one  Rider,  captain  of  the  Steamboat"  Alice," 
which  was  being  used  by  defendants  in  their  business  as  carriers,  to 
ship  his  horse  and  jack,  and  that  he  agreed  to  transport  them  for 
him.  He  asked  Rider  what  would  be  the  charge,  who  said  in  reply 
that  he  never  took  anything  for  less  than  a  dollar,  and  directed 
plaintiff  to  bring  on  his  stock.  Rider  testifies  as  follows:  "I 
promised  Gray  to  take  his  stock;  he  came  and  asked  me  what  I 
would  charge.  I  said  '  not  much,  if  anything.'  I  did  not  intend 
to  charge  him  anything.  I  took  him  over  purely  to  accommodate 
Gray." 

The  secret  intention  of  Rider,  unexpressed  and  locked  up  in  his 
breast,  not  to  charge  Gray  anything  for  the  transportation  of  his 
stock,  does  not  tend  to  establish  an  agreement  for  its  gratuitous 
transportation,  especially  when  connected  with  Avhat  he  did  express, 
that  he  would  "charge  him  not  much,  if  anytliing."  We  apprehend 
that  if  Gray  had  been  sued  for  the  transportation  of  his  stock,  it 
would  have  been  no  reply  to  the  action  for  him  to  have  set  up  as  a 
defence  that  Rider  said  when  he  was  applied  to  for  the  price  that 
he  would  not  charge  him  much,  if  anything. 

After  an  injury  results  to  property  intrusted  to  a  common  carrier 


22  CARRIERS   OF  GOODS. 

for  transportation,  who  upon  receiving  it  for  that  purpose  declined 
to  fix  the  price  or  charge  for  tlie  transportation,  he  cannot  be  allowed 
to  come  in  and  defeat  a  recovery  by  saying  that  at  the  time  of  its 
reception  he  had  a  secret  intention,  unexpressed  to  the  shipper  or 
consignor,  and  not  agreed  to  l)y  him,  not  to  charge  anything,  and 
that  the  transportation  was  gratuitous  and  not  for  hire.  The  instruc- 
tion copied  as  well  as  the  first  instruction  asked  by  defendant  upon 
a  kindred  subject  were  therefore  properly  refused.  The  seventh 
instruction  given  on  behalf  of  plaintiff  in  so  far  as  it  contained  the 
wonl  "gratuitously"  was  erroneous,  but  as  under  tlie  views  above 
expressed  no  injury  could  result  therefrom  to  defendant  it  is  no 
cause  for  disturbing  the  judgment. 

It  is  also  objected  that  the  court  misdirected  the  jury  V)y  its  third 
instruction,  in  which  they  were  toUl  that  if  they  found  for  plaintiff 
they  would  assess  his  damages  at  the  actual  value  of  tlie  jack  at  the 
time  he  was  sliipped  with  the  six  per  cent  interest  from  that  time. 
It  is  a  general  rule  that  when  goods  are  delivered  by  a  common 
carrier  according  to  contract,  the  measure  of  damages  is  the  value 
of  the  goods  with  interest  from  the  day  they  sliould  have  been 
delivered,  less  the  freight  if  unpaid.  Sedg.  on  Dam.  424;  King  /•. 
Shepherd,  3  Sto.  340;  Gushing  r.  Wells,  Fargo  &  Co.,  98  Mass.  5o0; 
Woodward  r.  Illinois  Central  E.  R.  Co.,  1  Bissel,  503;  Corby  /•. 
Davidson,  13  Minn.  92;  Mote  v.  Chicago  &  N.  W.  R.  R.  Co.,  27 
Iowa,  22. 

In  the  case  of  Atkinson  v.  Steamboat  Castle  Garden,  28  Mo.  124, 
Judge  Scott  remarks  "tliat  the  allowance  of  interest  in  tliese  cases 
depends  on  circumstances,  and  will  be  given  or  withheld  in  all  other 
cases  of  unliquidated  damages."  When  a  loss  occurs  Avithout  neg- 
ligence in  cases  of  tliis  class,  interest  miglit  be  withheld.  In  the 
case  at  bar  the  negligence  as  shown  by  the  proof  was  of  the  grossest 
character,  and  the  manner  in  which  the  jack  was  tlirown  down  and 
dragged  on  to  the  boat  might  well  have  subjected  tlie  jiarties  engaged 
in  it  to  a  prosecution  under  the  statute  for  cruelty  to  animals.  In 
conserpienee  of  it  plaintiff  liad  an  animal  with  l)r()kon  limbs  thrown 
on  liis  hands  to  be  cared  for,  till  lie  diecl  from  tlie  injuries,  one  week 
after  they  were  inflicted.  We  think  tlie  circumstances  jusliiicd  the 
allowance  of  interest. 

Wliilf^  tlie  instruction  as  to  the  measure  of  damages  is  silent  in 
!  •     the  iluty  of  tlie  jury  to  deduct  from  the  value  of  tlie  animals 

■i  ■  Ht  the  freiglit,  the  silence  of  the  court  may  lie  justiHcd  by 

the  silence  of  the  witnesses  in  regard  to  what  it  was  worth. 

The  defendant  agreed  to  ship  the  stock  without  the  price  being 
fixed  or  agreed  upon,  and  tlie  jironiise  to  ]»ay  what  was  reasonably 
worth  arose  by  implication  rif  law,  and  in  the  alisence  of  proof, 
showing  what  it  was  worth,  the  court  (committed  no  error  in  not 
alluding  to  it. 

./(///'/  ///  r7if  a  (ft  nnrti. 


WHO   ARE   COMMON   CARRIEKS.  23 

b.    Various  Classes  of  Business. 

HALE   V.    THE  NEW  JERSEY   STEAM  NAVIGATION   CO. 

15  Conu.  539.     1843. 

Williams,  Cli.  J.  The  suit  was  brought  for  two  carriages  shipped 
on  board  the  "Lexington,"  against  the  defendants,  as  common 
carriers,  to  be  transported  in  said  boat,  for  hire,  from  New  York  to 
Boston  or  Providence.  The  boat  and  goods  were  destroyed  by  fire, 
in  the  Sound;  and  a  verdict  being  given  for  the  plaintiff,  the 
defendants  excepted  to  the  charge,  and  claimed :  — 

1.  That  they  were  not  common  carriers  or  subject  to  the  rules 
that  govern  common  carriers.  It  was  long  since  settled,  that  any 
man,  undertaking  for  hire  to  carry  the  goods  of  all  persons  indif- 
ferently, from  place  to  place,  is  a  common  carrier.  Gisbourn  v. 
Hurst,  1  Salk.  249.  Common  carriers,  says  Judge  Kent,  consist  of 
two  distinct  classes  of  men,  viz.,  inland  carriers  by  land  or  Avater, 
and  carriers  by  sea;  and  in  the  aggregate  body  are  included  the 
owners  of  stage-coaches,  who  carry  goods,  as  well  as  passengers  for 
hire,  —  wagoners,  teamsters,  cartmen,  the  masters  and  owners  of 
ships,  vessels  and  all  water-craft,  including  steam  vessels  and  steam 
towboats  belonging  to  internal  as  well  as  coasting  and  foreign  navi- 
gation, lightermen  and  ferrymen.  2  Kent's  Com.  598  (2nd  ed.). 
And  there  is  no  difference  between  a  land  and  a  water  carrier,  3  Esp. 
Ca.  127;  10  Johns.  R.  7;  Story  on  Bailments,  319,  323. 


LIVERPOOL   STEAM  CO.    v.   PHCENIX  INS.    CO.^ 
129  U.  S.  397.     1889. 

Gray,  J.  (at  page  437).  .  .  .  The  contention  that  the  appellant  is 
not  a  common  carrier  may  also  be  shortly  disposed  of. 

By  the  settled  law,  in  the  absence  of  some  valid  agreement  to  the 
contrary,  the  owner  of  a  general  ship,  carrying  goods  for  hire, 
whether  employed  in  internal,  in  coasting,  or  in  foreign  commerce, 
is  a  common  carrier,  with  the  liability  of  an  insurer  against  all 
losses,  except  only  such  two  irresistible  causes  as  the  act  of  God  and 
public  enemies.  Molloy,  bk.  2,  c.  2,  sec.  2;  Bac.  Ab.  Carrier,  A; 
Barclay  v.  Cucullay  Gana,  3  Doug.  389;  2  Kent  Com.  598,  599;  Story 
on  Bailments,  sec.  501;  The  Niagara,  21  How.  7,  23;  The  Lady 
Pike,  21  Wall.  1,  14. 

^  For  the  remainder  of  the  case,  see  page  197. 


24  CAKRIEKS   OF   GOODS. 

lu  the  present  case  the  Circuit  Court  has  found  as  facts :  ''  The 
'  Montana '  was  an  ocean  steamer,  built  of  iron,  and  performed  regu- 
lar service  as  a  common  carrier  of  merchandise  and  jvissengers 
between  the  ports  of  Liverpool,  England,  and  New  York,  in  the  line 
commonly  known  as  the  Guion  Line.  By  her,  and  by  other  shi})s 
in  that  line,  the  respondent  was  such  common  carrier.  On  March 
2,  ISSO,  the  *  Montana  '  left  the  port  of  Xew  York,  on  one  of  her  regu- 
lar voyages,  bound  for  Liverpool,  England,  with  a  full  cargo,  con- 
sisting of  about  twenty-four  hundred  tons  of  merchandise,  and  with 
passengers."  The  bills  of  lading,  annexed  to  the  answer  and  to 
the  findings  of  fact,  show  that  the  four  shipments  in  question 
amounted  to  less  than  one  hundred  and  thirty  tons,  or  hardly  more 
than  one  twentieth  part  of  the  whole  cargo.  It  is  clear,  therefore, 
upon  this  record,  that  the  appellant  is  a  common  carrier,  and  is 
liable  as  such,  unless  exempted  by  some  clause  in  the  bills  of 
lading.  .  .  . 


McAKTHUR   &   HURLBERT  v.    SEARS. 
21  Wend.  (N.  Y.  Sup.  Ct.)  100.     1S39. 
CuWEN,  J.  .  .  .  .  .  .  •  .  •  • 

Tlie  defendant  was  a  common  carrier;  and  it  is  not  denied  as 
a  general  rule,  that,  to  protect  himself  from  responsibility  for  the 
loss,  he  was  bound  to  prove  that  it  arose  from  the  act  of  God,  or 
the  enemies  of  the  country.  To  the  latter,  the  proof  oifered 
makes  no  pretensions ;  and  it  was  thrown  out  in  argument  that  the 
former  part  of  the  rule  has  no  application  to  carriers  navigating 
the  dangerous  waters  of  Lake  Erie.  No  such  local  exception  is 
known  to  the  law  of  England  or  Scotland,  whatever  the  general 
dangers  of  navigation.  2  Kent's  Com.  5'.)7,  (iOT,  COS,  3  ed.  Nor 
can  it  be  indulged  with  safety  either  in  principle  or  i)ractice.  No 
such  exception  lias  been  made  by  any  case  in  this  State;  nor  am 
I  aware  that  it  has  ever  been  contended  for,  though  there  have 
l>eon  several  closely  litigated  suits,  for  losses  by  carriers  Hi)on  our 
Great  Lakes.  I  do  not  fmd  that  it  has  been  recognized  by  any  case 
in  the  neighl>oring  States;  and  distinctions  in  favor  of  carriers  by 
water  iren«'rally,  which  have  been  countenanced  in  one  case,  Ay  mar 
r.  '.  Cowen,  2Gr»,  })y  a  dictum  <»f  the  late  Chief  Justice  of  this 

h  l)y  two  or  three  cases  in  Pennsylvania,  have  been  treated 

an  unfounded  aufunalios,  to  be  disapproved  as  contrary  to  decisions 
in  neighlioring  States,  and  even  in  our  own.  Story  on  Bailm.  .'J2.'3, 
i  497;  2  K««nt'H  Com.  GOT,  OOS,  3  ed. ;  Crosby  v.  Fitch,  12  Conn.  K. 
419.  In  Elliott  V.  Kozftll,  10  Johns.  K.  1,  the  rule  was  applied  to 
thf  navigation  of  the  riv(!r  St.  Lawrence  in  scows,  late  in  the  season, 
IxJtwccn   Ogdensburgh   and    Montreal,   which    was    known    ly    the 


WHO   ARE    COMMON    CARRIERS.  25 

shippers  to  be  very  dangerous:  see  also  Kemp  v.  Coughtry,  11 
Johns.  E.  107;  Colt  v.  M'Mechen,  6  Johns.  li.  160;  Harrington  v. 
Lyles,  2  Nott.  &  M.  88,  89,  and  the  cases  there  cited.  Williams 
V.  Grant,  1  Conn.  R.  487,  and  several  cases  hereafter  cited.  Bell  v. 
Reed,  4  Binn.  127,  was  like  the  one  at  bar,  a  case  of  navigation 
on  Lake  Erie,  and  proceeded  throughout  on  the  assumption  that 
defendants  must,  in  order  to  excuse  the  loss,  prove  the  utmost  care 
in  themselves  and  convince  the  jury  that  the  loss  arose  from  the  act 
of  God. 


HALL  V.    RENFRO. 
3  Mete.  (Ky.)  51.     1800. 

DuvALL,  J.  .  .  .  The  testimony  shows  conclusively  that  the 
defendant  was,  at  the  time  the  alleged  loss  occurred,  the  keeper  of 
a  public  ferry,  or  that  he  held  himself  out  to  the  world  as  such. 
Upon  this  point  there  is  no  contradiction  or  even  contrariety  in  the 
proof. 

Did  he  thereby  subject  himself  to  the  obligations  and  liabilities  of 
a  common  carrier?     The  authorities  are  conclusive  of  this  question. 

In  the  case  of  Robertson  &  Co.  v.  Kennedy,  2  Dana,  430,  a 
common  carrier  is  defined  to  be,  "  one  who  undertakes,  for  hire  or 
reward,  to  transport  the  goods  of  all  such  as  choose  to  employ  him 
from  place  to  place;"  that  draymen,  cartmen,  etc.,  who  undertake 
to  carry  goods  for  hire  as  a  common  employment,  from  one  part  of  a 
town  to  another,  come  within  the  definition;  and  that  the  mode  of 
transportation  is  immaterial.  Public  ferrymen,  or  those  who  hold 
themselves  out  as  such,  are  undoubtedly  common  carriers.  "The 
owner  of  a  private  ferry  may  so  use  it  (although  on  a  road  not  opened 
by  public  authorit}^,  or  repaired  by  public  labor)  as  to  subject  him- 
self to  the  liabilities  of  a  common  carrier;  and  he  does  do  so  if  he 
notoriously  undertakes  for  hire,  to  convey  across  the  river,  all  per- 
sons indifferently,  with  their  carriages  and  goods."  Angell  on  the 
Law  of  Carriers,  sec.  82. 


THE   NEAEFIE. 

1  Abbott  (U.  S.  C.  C),  405.     1870. 

Woods,  C.  J.  The  business  of  "The  Neaffie,"  as  the  evidence 
shows,  is  to  tow  fiats  and  other  water-craft  from  one  point  to  another 
in  and  about  the  harbor  of  the  city  of  New  Orleans.  The  hire  for 
her  services  varies  according  to  the  bargain  made  at  the  time  the 
service  is  rendered. 


26  CARRIEKS   OF   GOODS. 

A  common  carrier  is  often  defined  to  be:  "One  who  undertakes 
for  hire  to  transport  the  goods  of  such  as  choose  to  employ  him  from 
point  to  point."  This  definition  is  very  broad,  and  in  its  applica- 
tion to  facts  is  subject  to  certain  limitations.  A  better  and  more 
precise  definition  is,  *'  One  who  offers  to  carry  goods  for  any  person 
between  certain  termini  or  on  a  certain  route,  and  who  is  bound  to 
carry  for  all  who  tender  him  goods  and  the  price  of  carriage."  AVas 
"The  Xeattie  "  a  common  carrier  under  either  of  these  definitions? 

Chief  Justice  ^larsliall,  in  Boyce  v.  Anderson,  2  Pet.  150,  says. 
"The  law  applicable  to  common  carriers  is  one  of  great  rigor. 
Though  to  the  extent  to  which  it  has  been  carried,  and  in  cases  to 
which  it  has  been  applied,  we  admit  its  necessity  and  its  policy, 
we  do  not  think  it  ought  to  be  carried  further  or  applied  to  new 
cases."  So  unless  the  case  of  steam-tugs  towing  boats  and  their 
cargoes  can  be  brought  strictly  within  the  definition  of  common 
carriers,  I  am  not  disposed  to  apply  to  them  the  great  rigor  of 
the  law  applicable  to  common  carriers.  Can  it  be  said  that  the 
tug-boats  plying  in  the  harbor  of  New  Orleans  undertake  to 
transix)rt  the  goods  found  on  the  water-craft  which  they  take  in 
tow?  It  appears  to  me  that  it  is  the  boat  in  which  the  goods  are 
put  that  undertakes  to  transport  them.  The  tug  only  furnishes  the 
motive-power.  It  is  like  the  case  of  the  owner  of  a  wagon  laden 
with  merchandise  hiring  another  to  hitch  his  horses  to  the  wagon  to 
draw  it  from  one  point  to  another,  the  owner  of  the  wagon  riding  in 
it,  and  having  charge  of  the  goods.  In  such  a  case,  could  it  be 
claimed  with  any  show  of  reason  that  the  owner  of  the  team  was  a 
common  carrier?  The  reason  of  the  law  which  imposes  upon  the 
common  carrier  such  rigorous  responsibility  fails  in  such  a  case. 
The  tug-boats  plying  in  New  Orleans  harbor  do  not  receive  the 
prof)erty  into  their  custody,  nor  do  they  exercise  any  control  over 
it  other  tlian  such  as  results  from  the  towing  of  the  boat  in  which 
it  is  laden.  They  neither  employ  tlie  master  and  hands  of  the  boat 
towed,  nor  do  they  exercise  any  authority  over  them  beyond  that  of 
occasionally  requiring  their  aid  in  governing  the  flotilla.  The  boat, 
goods,  and  other  property  remain  in  charge  and  care  of  the  master 
and  liands  of  the  boat  towrd.  In  case  of  loss  by  fire  or  robbery, 
withrmt  any  actual  default  on  tlie  part  of  the  master  or  crew  of  the 
tow-lxjat,  it  can  be  hardly  contended  they  would  be  answerable,  and 
yet  carriers  would  be  answerable  for  such  loss. 

That  tow-lx)ats  are  not  common  carriers  has  been  licld  in  tlie  fol- 
lowing cases:  Caton  V.  liumncy,  1.'}  Wend.  .'}.S7;  Alexander  r.  Greene, 
3  Hill,  1);  Widls  r.  Steam  Navigation  Co. ,  L' Comst.  201;  iVnnsyl- 
vania,  I).  &  M.  Steam  Nav.  Co.  v.  Dsmdridgcs  S  Gill  &  J.  218; 
I.' '  :i.ird  I'.  Hendrickson,  IS  Penn.  St.  l'*.  In  Vanderslice  v.  The 
l.'J  Law  H«p.  3'Jl),  Mr.  Jiistice  Kane  held  a  .steam  tow- 
."  as  a  common  carrier;  but  when  the  case  came  before  the 
Circuit  Court,  Mr.  Justice  Grier  said  he  could  not  assent  to  the  doc- 


WHO   ARE   COMMON"   CARRIERS.  27 

trine.  I  am  aware  that  a  contrary  doctrine  had  been  applied  by 
the  Supreme  Court  of  Louisiana  to  steam-tugs  towing  between  the 
city  of  New  Orleans  and  the  mouth  of  the  Mississippi  River. 
These  tow-boats  are  distinguishable  from  those  plying  in  the  har- 
bor of  New  Orleans;  but  if  it  were  otherwise,  I  think  the  weight 
of  authority  and  reason  is  with  those  who  hold  tow-boats  not  to  be 
common  carriers. 


COUP  V.    WABASH,  etc.  EY.    CO. 
56  Mich.  111.     1885. 

Campbell,  J.  Plaintiff,  who  is  a  circus  proprietor,  sued  defend- 
ant  as  a  carrier  for  injuries  to  cars  and  equipments,  and  to  persons 
and  animals  caused  by  a  collision  of  two  trains  made  up  of  his  cir- 
cus cars,  while  in  transit  through  Illinois.  The  court  below  held 
defendant  to  the  common-law  liability  of  a  common  carrier,  and  held 
there  was  no  avoiding  liability  by  reason  of  a  special  contract  under 
which  the  transportation  was  directed.  The  principal  questions 
raised  on  the  trial  arose  out  of  discussions  concerning  the  nature  of 
defendant's  employment,  and  questions  of  damage.  Some  other 
points  also  appeared.  In  the  view  which  we  take  of  the  case,  the 
former  become  more  important,  and  will  be  first  considered. 

Plaintiff  had  a  large  circus  property,  including  horses,  wild  ani- 
mals, and  various  paraphernalia,  with  tents  and  appliances  for 
exhibition.   .   .   . 

The  defendant  company  has  an  organized  connection,  under  the 
same  name,  with  railways  running  between  Detroit  and  St.  Louis, 
through  Indiana  and  Illinois.  On  the  2oth  of  July,  1882,  a  written 
contract  was  made  at  St.  Louis  by  defendant's  proper  agebt  with 
plaintiff  to  the  following  effect.  Defendant  was  to  furnish  men  and 
motive-power  to  transport  the  circus  by  train  of  one  or  more  divi- 
sions, consisting  of  twelve  flat,  six  stock,  one  elephant,  one  baggage, 
and  three  passenger  coaches,  being  in  all  twenty-three  cars  from 
Cairo  to  Detroit  with  privilege  of  stopping  for  exhibition  at  three 
places  named,  fixing  the  time  of  starting  from  each  place  of  exhibi- 
tion, leaving  Cairo  August  19th,  Delphi,  August  21st,  Columbia 
City,  August  22d,  exhibiting  at  Detroit  August  23d,  and  then  to  be 
turned  over  to  the  Great  Western  Transfer  Line  boats.  Plaintiff 
was  to  furnish  his  own  cars,  and  two  from  another  company  at  Cairo, 
in  good  condition  and  running  order.  It  was  agreed  that  "for  the 
use  of  the  said  machinery,  motive-power,  and  men,  and  the  privileges 
above  enumerated,  plaintiff  should  pay  $400  for  the  run  to  Delphi, 
$175  to  Columbia  City,  and  $225  to  Detroit,  each  sum  to  be  paid 
before  leaving  each  point  of  departure." 

It  was  further  expressly  stipulated  that  the  agreement  was  not 


28  CARRIERS   OF   GOODS. 

made  with  defendant  as  a  carrier,  but  merely  "as  a  hire  of  said 
machinery,  motive-power,  and  right  of  way,  and  the  men  to  move 
and  work  the  same;  the  same  to  be  operated  under  the  management, 
direction,  orders,  and  control  of  said  party  of  the  second  part  (plain- 
tiff) or  his  agent,  ais  in  his  possession,  and  by  means  of  said  em- 
ployees as  his  agents,  but  to  run  according  to  the  rules,  regulations, 
and  time-tables  of  tlie  said  party  of  the  first  part." 

The  contract  further  provides  that  defendant  should  not  be  respon- 
sible for  damage  by  want  of  care  in  the  running  of  the  cars  or  other, 
wise,  and  for  stipulated  damages  in  case  of  any  liability.  It  also 
provided  for  transporting  free  on  its  passenger  trains  two  advertis- 
ing cars  and  advertising  material. 

The  plaintiff's  cars  were  made  up  in  two  trains  at  Cairo,  and 
divided  to  suit  instructions.  The  testimony  tended  to  prove  that 
two  cars  were  added  to  the  forward  train  by  order  of  plaintiff's 
agent,  but  in  the  view  we  take  the  question  who  did  it  is  not  impor- 
tant. The  forward  train  was  for  some  cause  on  wliich  there  was 
room  for  argument  brought  to  a  stand-still,  and  run  into  by  the 
other  train  and  considerable  damage  done  by  the  collision. 

Defendant  insisted  that  plaintiff  made  out  no  cause  for  recovery, 
and  that  the  contract  exempted  them.  Plaintiff  claimed,  and  the 
court  below  held  the  exemption  incompetent. 

Unless  this  undertaking  was  one  entered  into  by  the  defendant  as 
a  common  carrier,  there  is  very  little  room  for  controversy.  The 
price  was  shown  to  be  only  ten  per  cent  of  the  rates  charged  for 
carriage,  and  the  wliole  arrangement  was  peculiar.  If  it  was  not  a 
contract  of  common  carriage,  we  need  not  consider  how  far  in  that 
character  contracts  of  exemption  from  liability  may  extend.  In  our 
view  it  was  in  no  sense  a  common  carrier's  contract,  if  it  involved 
any  principle  of  the  law  of  carriers  at  all. 

The  business  of  common  carriage,  wliile  it  prevents  any  right  to 
refu.se  the  carriage  of  property  such  as  is  generally  carried,  imj>lies, 
especially  on  railroads,  that  the  business  will  be  done  on  trains  made 
up  by  the  carrier  and  running  on  their  own  time.  It  is  never  the 
duty  of  the  carrier,  as  such,  to  make  up  special  trains  on  demand,  or 
to  drive  such  trains  made  up  entirely  by  otlier  persons  or  by  their 
cars.  It  is  not  important  now  to  consider  how  far,  except  as  to 
owners  of  goods  in  the  cars  forwarded,  tlie  reception  of  cars,  loaded 
or  unloaded,  involves  the  responsibility  of  carriers  as  to  the  owners 
(>^    '  ich.     The  diity  to  receive  cars  of  other  ))erson.s,  when 

«  ''dly  fixed  by  the  railroad  laws,  and  not  by  the  com- 

mcin  law,  JJut  it  is  not  incum])ent  upon  companies  in  tlieir  duty  as 
commfui  carriers  to  move  such  cars  except  in  their  own  routine. 
They  are  not  obliged  to  accept  and  run  them  at  all  timos  and  seasons, 
and  not  in  tho  ordinary  course  of  business. 

Tli«-  rontr.'ut  before  us  invrdves  very  few  tilings  ordinarily  under- 
takeu  by  carriers.     The  trains  were  to  be  made  up  entirely  of  ears 


WHO   AKE   COMMON   CARRIEKS.  29 

which  belonged  to  plaintiff,  and  which  the  defendant  neither  loaded 
nor  prepared,  and  into  the  arrangement  of  which,  and  the  stowing 
and  placing  of  their  contents,  defendant  had  no  power  to  meddle. 
The  cars  contained  horses  which  were  entirely  under  control  of 
plaintiff,  and  which,  under  any  circumstances,  may  involve  special 
risks.  They  contained  an  elephant,  which  might  very  easily  involve 
difficulty,  especially  in  case  of  accident.  They  contained  wild  ani- 
mals which  defendant's  men  could  not  handle,  and  which  might  also 
become  troublesome  and  dangerous.  It  has  always  been  held  that  it 
is  not  incumbent  on  carriers  to  assume  the  burden  and  risks  of  such 
carriage. 

The  trains  were  not  to  be  run  at  the  option  of  the  defendant,  but 
had  short  routes  and  special  stoppages,  and  were  to  be  run  on  some 
part  of  the  road  chiefly  during  the  night.  They  were  to  wait  over 
for  exhibitions,  and  the  times  were  fixed  with  reference  to  these 
exhibitions,  and  not  to  suit  the  defendant's  convenience.  There  was 
also  a  divided  authority,  so  that  while  defendant's  men  were  to 
attend  to  the  moving  of  the  trains,  they  had  nothing  to  do  with 
loading  and  unloading  cars,  and  had  no  right  of  access  or  regulation 
in  the  cars  themselves. 

It  cannot  be  claimed  on  any  legal  principle  that  plaintiff  could,  as 
a  matter  of  right,  call  upon  defendant  to  move  his  trains  under  such 
circumstances  and  on  such  conditions,  and  if  he  could  not,  then  he 
could  only  do  so  on  such  terms  as  defendant  saw  fit  to  accept.  It 
was  perfectly  legal  and  proper,  for  the  greatly  reduced  price,  and 
with  the  risks  and  trouble  arising  out  of  moving  peculiar  cars  and 
peculiar  contents  on  special  excursions  and  stoppages,  to  stipulate 
for  exemption  from  responsibility  for  conseqviences  which  might 
follow  from  carelessness  of  their  servants  while  in  this  special 
employment.  How  far,  in  the  absence  of  contract,  they  would  be 
liable  in  such  a  mixed  employment,  where  plaintiff's  men  as  well  as 
their  own  had  duties  to  perform  connected  with  the  movement  and 
arrangement  of  the  business,  we  need  not  consider. 

It  is  a  misnomer  to  speak  of  such  an  arrangement  as  an  agreement 
for  carriage  at  all.  It  is  substantially  similar  to  the  business  of 
towing  vessels,  which  has  never  been  treated  as  carriage.  It  is, 
although  on  a  larger  scale,  analogous  to  the  business  of  furnishing 
horses  and  drivers  to  private  carriages.  Whatever  may  be  the  lia- 
bility to  third  persons  who  are  injured  by  carriages  or  trains,  the 
carriage-owner  cannot  hold  the  persons  he  employs  to  draw  his 
vehicles  as  carriers.  We  had  before  us  a  case  somewhat  resembling 
this  in  more  or  less  of  its  features  in  Mann  if.  White  River  Log  & 
Booming  Co.,  46  Mich.  38,  where  it  was  sought  to  make  a  carrier's 
liability  attach  to  log-driving,  which  we  held  was  not  permissible. 
All  of  these  special  undertakings  have  peculiar  features  of  their 
own,  but  they  cannot  be  brought  within  the  range  of  common 
carriage. 


CAKKIEKS    OF    GOODS. 


It  is  therefore  needless  to  discuss  the  other  questions  in  the  case, 
which  involve  several  rulings  open  to  criticism.  We  think  the 
defendant  was  not  liable  in  the  action,  and  it  should  have  been 
Uiken  from  the  jury,  and  a  verdict  ordered  of  no  cause  of  action. 

The  judgment  must  be  reversed  and  a  new  trial  granted. 


BUCKLAND   v.    ADA^IS   EXlliESS   CO. 
97  Mass.  l-2i.     1SG7. 

Contract  to  recover  the  value  of  a  case  of  i)istols.  In  the  Superior 
Court  judgment  was  entered  for  the  plaintiffs  on  agreed  facts;  and 
the  defendants  appealed  to  this  court. 

BiGKLow,  C.  J.  We  are  unable  to  see  any  valid  reason  for  the 
suggestion  that  the  defendants  are  not  to  be  regarded  as  common 
carriers.  The  name  or  style  under  which  they  assume  to  carry  on 
their  business  is  wholly  immaterial.  Thi^  real  nature  of  their  occu- 
pation and  of  the  legal  duties  and  obligations  which  it  imposes  on 
them  is  to  be  ascertained  from  a  consideration  of  the  kind  of  service 
whicli  they  hold  themselves  out  to  the  public  as  ready  to  render  to 
those  who  may  have  occasion  to  em])loy  them.  Ui)on  this  point 
there  is  no  room  for  doubt.  They  exercise  tlie  employment  of 
receiving,  carrying,  and  delivering  goods,  wares,  and  merchandise 
for  hire  on  behalf  of  all  persons  who  may  see  lit  to  require  their 
services.  In  this  capacity  they  take  property  from  the  custody  of 
the  owner,  assume  entire  possession  and  control  of  it,  transport  it 
from  place  to  place,  and  deliver  it  at  a  point  uf  destination  to  some 
consignee  or  agent  there  authorized  to  receive  it.  The  statement 
embraces  all  the  elements  essential  to  constitute  the  relation  of  com- 
mon carriers  on  the  part  of  the  defendants  towards  the  persons  who 
employ  them.  Dwight  v.  Brewster,  1  Tick.  5(>,  o3  [16];  Lowell 
Wire  Fence  Co.  r.  Sargent,  8  Allen,  ISD;  'J  Bedtield  on  Kailways, 
1-lC. 

But  it  is  urg<'d  in  behalf  of  the  defendants  that  they  ought  not  to 
be  lield  to  the  strict  liability  of  common  carriers,  for  the  reason  that 
tlie  contract  of  carriage  is  essentially  modified  by  the  j)ecnliar  mode 
in  which  the  defendants  undertake  the  i)erformance  of  the  service. 
The  main  ground  on  which  this  argument  rests  is,  that  i)ersons  exer- 
ci.sing  tlie  emidoyment  of  exi)ress  carriers  or  messengers  over  rail- 
roridH  and  by  steamboats  cannot,  from  the  very  nature  of  the  case, 
cxr-rciHe  any  eare  or  control  over  tlie  means  of  transportation  which 
they  are  obliged  to  adopt;  tliat  the  carriages  and  boats  in  wliich  the 
merchandise  intrusted  to  them  is  placed,  and  the  agents  or  servants 
by  wljom  they  are  managed,  are  not  selected  by  them  nor  subject  to 
their  ilin-ction  or  sujiervision;  and  tliat  tlie  rules  of  common  law, 
regulating  the  duties  and  liabilities  of  earrirrs.  having  been  adapted 


WHO   ARE   COMMOX   CARRIERS.  31 

to  a  different  mode  of  conducting  business,  by  which  the  carrier  was 
enabled  to  select  his  own  servants  and  vehicles  and  to  exercise  a 
personal  care  and  oversight  of  them,  are  wholly  inapplicable  to  a 
contract  of  carriage  by  which  it  is  understood  between  the  parties 
that  the  service  is  to  be  performed,  in  part,  at  least,  by  means  of 
agencies  over  which  the  carrier  can  exercise  no  management  or  con- 
trol whatever.  But  this  argument,  though  specious,  is  unsound. 
Its  fallacy  consists  in  the  assumption  that  at  common  law,  in 
the  absence  of  any  express  stipulation,  the  contract  with  an  owner 
or  consignor  of  goods  delivered  to  a  carrier  for  transportation  neces- 
sarily implies  that  they  are  to  be  carried  by  the  party  with  whom 
the  contract  is  made,  or  by  servants  or  agents  under  his  imme- 
diate direction  and  control.  But  such  is  not  the  undertaking  of 
the  carrier.  The  essence  of  the  contract  is  that  the  goods  are  to 
be  carried  to  their  destination  unless  the  fulfilment  of  this  under- 
taking is  prevented  by  the  act  of  God  or  the  public  enemy.  This, 
indeed,  is  the  whole  contract,  whether  the  goods  are  carried  by  land 
or  water,  by  the  carrier  himself  or  by  agents  employed  by  him.  The 
contract  does  not  imply  a  personal  trust,  which  can  be  executed  only 
by  the  contracting  party  himself  or  under  his  supervision  by  agents 
and  means  of  transportation  directly  and  absolutely  within  his  con- 
trol. Long  before  the  discovery  of  steam-power,  a  carrier  who 
undertook  to  convey  merchandise  from  one  point  to  another  was 
authorized  to  perform  the  service  through  agents  exercising  an  inde- 
pendent employment,  which  they  carried  on  by  the  use  of  their  own 
vehicles  and  under  the  exclusive  care  of  their  own  servants.  It  cer- 
tainly never  was  supposed  that  a  person  who  agreed  to  carry  goods 
from  one  place  to  another  by  means  of  wagons  or  stages  could  escape 
liability  for  the  safe  carriage  of  the  property  over  any  part  of  the 
designated  route  by  showing  that  a  loss  happened  at  a  time  when 
the  goods  were  placed  by  him  in  vehicles  which  he  did  not  own,  or 
which  were  under  the  charge  of  agents  whom  he  did  not  select  or 
control.  The  truth  is  that  the  particular  mode  or  agency  by  which 
the  service  is  to  be  performed  does  not  enter  into  the  contract  of 
carriage  with  the  owner  or  consignor.  The  liability  of  the  carrier 
at  common  law  continues  during  the  transportation  over  the  entire 
route  or  distance  over  which  he  has  agreed  to  carry  the  property 
intrusted  to  him.  And  there  is  no  good  reason  for  making  any  dis- 
tinction in  the  nature  and  extent  of  this  liability  attaching  to  car- 
riers, as  between  those  who  undertake  to  transport  property  by  the 
use  of  the  modern  methods  of  conveyance,  and  those  who  performed 
a  like  service  in  the  modes  formerly  in  use.  If  a  person  assumes  to 
do  the  business  of  a  common  carrier,  he  can,  if  he  sees  fit,  confine  it 
within  such  limits  that  it  may  be  done  under  his  personal  care  and 
supervision  or  by  agents  whom  he  can  select  and  control.  But  if  he 
undertakes  to  extend  it  further,  he  must  either  restrict  his  liability 
by  a  special  contract  or  bear  the  responsibility  which  the  law  affixes 


32  CAKRIERS   OF   GOODS. 

to  the  sjieoies  or  i-.Mitract  into  which  he  voluntarily  enters.  There 
is  certiiiuly  no  hardshiji  in  this,  because  he  is  bound  to  take  no 
greater  risk  than  that  which  is  imposed  by  law  on  those  wliom  he 
employs  as  his  agents  to  fultil  tlie  contracts  into  which  he  has 
entered. 

It  is  not  denied  that  in  the  present  case  the  goods  were  lost  or 
destroyed  while  they  were  being  carried  over  a  portion  of  the  route 
embraced  in  the  contract  with  tlie  plaintitfs,  and  before  they  had 
reached  the  point  to  which  the  defendants  had  agreed  to  carry  them. 
It  is  not  a  case  where  the  agreement  between  the  parties  was  that 
tlie  merchandise  was  to  be  delivered  over  by  the  defendants  to  other 
carriers  at  an  intermediate  point,  thence  to  be  transported  over  an 
independent  route  to  the  point  of  destination  without  further  agency 
on  the  part  of  the  defendants.  The  stipulation  was  tliat  the  defend- 
ants should  carry  the  property  from  the  place  where  they  received  it 
to  the  point  where  it  was  to  be  delivered  into  the  hands  of  the  con- 
signee. The  loss  happened  before  the  defendants  had  fulfilled  their 
promise. 

Judgment  for  pla  hit  Iff.  * 


ROBERTS   V.    TURNER. 

12  Johns.  (N.  Y.  .Sup.  Ct.)  231.     1814. 

This  was  an  action  on  the  case,  against  the  defendant,  as  a 
common  carrier. 

The  defendant  resided  at  Utica,  and  pursued  the  business  of  for- 
warding merchandi.se  and  })roduce  from  Utica  to  Sclienectady  and 
Albany.  The  ordinary  course  of  this  business  is,  for  tlie  forwarder 
to  receive  the  merchandise  or  produce  at  his  store,  and  send  it  by 
the  boatman,  who  transports  goods  on  the  Mohawk  River,  or  by 
watjon  to  Schenectady  or  Albany,  for  which  he  is  ])aid  at  a  certain 
r.itc  jior  barrel,  etc. ;  and  his  compensation  consists  in  the  ditterence 
U'twecn  the  sum  which  he  is  obliged  to  pay  for  transportation,  and 
that  which  he  receives  from  the  owner  of  the  goods. 

The  defendant  received  from  the  plaintiff,  who  resided  in  Caze. 
novia,  in  Madison  County,  by  Aldrich,  his  agent,  twidve  barrels  of 
pot  a.sheH,  to  be  forwarded  to  Albany,  to  Trotter;  the  ashes  were 
put  on  JMard  a  boat,  to  be  carried  down  the  Mohawk  to  Schenectady, 
and  whilst  proceeding  down  the  river,  the  boat  ran  against  a  bridge 
and  Htink,  and  the  a.she8  were  thereby  lost. 

The  defendant's  price  for  forwarding  goods  to  Schenectady  was 

*  Ilefendant't  attorney  r<-lU'<l  in  nr>o>nH'nl  on  KolM-rtn  v.  Tiinier,  wliirli  follows. 


WHO   AKE   COMMON   CARRIERS.  33 

twelve  shillings  per  barrel,  and  the  price  which  he  had  agreed  to  pay 
for  the  transporting  the  goods  in  question  to  that  place  was  eleven 
shillings ;  the  defendant  had  no  interest  in  the  freight  of  the  goods, 
and  was  not  concerned  as  an  owner  in  the  boats  employed  in  the 
carriage  of  merchandise. 

The  judge  being  of  the  opinion  that  the  testimony  did  not  make 
out  the  defendant  to  be  a  common  carrier,  nonsuited  the  plaintiff; 
and  a  motion  was  made  to  set  aside  the  nonsuit. 

Spencer,  J.  On  the  fullest  reflection,  I  perceive  no  grounds  for 
changing  the  opinion  expressed  at  the  circuit.  The  defendant  is  in 
no  sense  a  common  carrier,  either  from  the  nature  of  his  business, 
or  any  community  of  interest  with  the  carrier.  Aldrich,  who,  as 
the  agent  of  the  plaintiff,  delivered  the  ashes  in  question  to  the 
defendant,  states  the  defendant  to  be  a  forwarder  of  merchandise 
and  produce  from  Utica  to  Schenectady  and  Albany;  and  that  he 
delivered  the  ashes,  with  instructions  from  the  plaintiff  to  send  them 
to  Colonel  Trotter. 

The  case  of  a  carrier  stands  upon  peculiar  grounds.  He  is  held 
responsible  as  an  insurer  of  the  goods,  to  prevent  combinations, 
chicanery,  and  fraud.  To  extend  this  rigorous  law  to  persons  stand- 
ing in  the  defendant's  situation,  it  seems  to  me,  would  be  unjust 
and  unreasonable.  The  plaintiff  knew,  or  might  have  known  (for 
his  agent  knew),  that  the  defendant  had  no  interest  in  the  freight 
of  the  goods,  owned  no  part  of  the  boats  employed  in  the  carriage  of 
goods,  and  that  his  only  business  in  relation  to  the  carriage  of  goods 
consisted  in  forwarding  them.  That  a  person  thus  circumstanced 
should  be  deemed  an  insurer  of  goods  forwarded  by  him,  an  insurer 
too,  without  reward,  would,  in  my  judgment,  be  not  only  without 
a  precedent,  but  against  all  legal  principles.  Lord  Kenyon,  in  treat- 
ing of  the  liability  of  a  carrier  (5  T.  R.  394),  makes  this  criterion 
to  determine  his  character;  whether,  at  the  time  when  the  accident 
happened,  the  goods  were  in  the  custody  of  the  defendants  as  com- 
mon carriers.  In  Garside  v.  The  Proprietors  of  the  Trent  and 
Mersey  Navigation  (4  T.  R.  581),  the  defendants,  who  were  common 
carriers,  undertook  to  carry  goods  from  Stoneport  to  Manchester, 
and  thence  to  be  forwarded  to  Stockport,  and  were  put  into  the 
defendants'  warehouse,  and  burnt  up  before  an  opportunity  arrived 
to  forward  them.  Lord  Kenyon  held,  the  defendants'  character  of 
carriers  ceased  when  the  goods  were  put  into  the  warehouse.  This 
case  is  an  authority  for  saying  that  the  responsibilities  of  a  common 
carrier  and  forwarder  of  goods  rest  on  very  different  principles. 

In  the  present  case,  the  defendant  performed  his  whole  undertak- 
ing; he  gave  the  ashes  in  charge  to  an  experienced  and  faithful 
boatman. 


34  CARRIERS    OF   GOODS. 

TRAySPORTATIOX   CO.    v.    BLOCH  BROTHERS. 
80  Tenn.  392.     168S. 

Calowklf..  J.  This  action  was  brought  in  the  Circuit  Court  of 
Davidson  County,  by  Bloch  Bros.,  against  the  ^Merchants'  Dispatch 
Transportation  Co.,  as  a  common  carrier,  to  recover  the  value  of  a 
certain  case  of  merchandise.  Verdict  and  judgment  were  for  the 
plaintiffs,  and  the  defendant  lias  appealed  in  error.   .   .   . 

The  contention  of  the  defendant  in  the  court  below  was,  that  these 
stipulations  in  the  bill  of  lading  relieved  it  from  liability  for  the 
loss  of  plaintiffs'  goods,  and  the  charge  of  the  Trial  Judge  with 
respect  thereto  is  now  assailed  as  erroneous.   .  .   . 

This  instruction  properly  treats  the  defendant  as  a  common  car- 
rier. The  duties  which  it  undertakes,  and  whicli  it  holds  itself  out 
to  the  public  as  willing  to  undertake  and  ])erform,  give  it  that  char- 
acter. In  very  many  cases  it  has  been  expressly  adjudged  to  be  a 
common  carrier,  and  in  others  such  has  been  assumed  to  be  its  char- 
acter without  a  discussion  of  the  question.  We  cite  a  few  of  these 
cases:  Merchants'  Dispatch  Transportation  Co.  v.  Comforth,  3  Colo. 
280  (L'5  Am.  K.  757);  45  Iowa,  470;  47  Iowa,  220;  id.  247;  id.  202; 
iiO  111.  473;  8*JI11.  43;  id.  152. 

The  text-writers  say  that  despatch  companies  are  common  carriers, 
and  class  them  with  express  companies  because  of  the  many  points 
of  similarity  in  their  business,  and  the  fact  that  they  alike  generally 
use  the  vehicles  of  others  in  the  transportation  of  freight.  Lawson 
on  Contracts  of  Carriers,  sec.  233;  Hutchinson  on  Carriers,  sec.  72. 


c.    Bnrjgage  of  Passengers. 

ORANGE   COUNTY    P.ANK    r    B.ROWN. 

9  Wend.  (N.  Y.  Sup.  Ct.)  8.').     1832. 

Tni«  wa.s  an  actif»n  on  the  case. 

The  8uit  was  brought  against  the  dofendants  as  the  owners  of  a 
Bteamlwat  <•  •■n-i  'ho  "Cimstollation,"  for  the  loss  of  a  trunk  belong- 
ing to  a  :  I    on  board  the  boat,  who  was  the  agent  of  the 

|, :i,(l  iiiLnistcd  with  the  carriage  of  SI  1,250  from  the  city 

(.  ,  ,,rk  to  tlw  banking  liouse  of  the  jilaintiffs.  in  the  village 

of  (ioHhen.  The  d«'flaration  contained  a  count  rt'oiting  tliat  tho 
defendants,  on  the  loth  of  November,  1827,  were  the  owners  or  pro- 


WHO   ARE   COMMON   CARKIERS.  35 

prietors  of  a  steamboat  called  the  "Constellation,"  navigated  on 
the  Hudson  River,  between  the  cities  of  New  York  and  Albany,  for 
the  carriage,  conveyance,  and  transportation  of  passengers  and  their 
baggage  and  effects,  for  hire  and  reward,  commonly  called  passage- 
money;  touching  upon  the  passage  from  New  York  to  Albany  at  the 
village  of  Newburgh,  for  the  purpose  of  landing  passengers  and  their 
baggage  or  effects ;  that  on  the  said  15th  day  of  November,  in  the 
year,  etc.,  one  William  Phillips,  as  the  agent  of  the  plaintiffs,  at 
the  special  instance  and  request  of  the  defendants,  delivered  to  R. 
G.  Cruttenden,  then  being  master  of  the  "Constellation,"  the  trunk 
or  baggage  of  him  the  said  William  Phillips,  containing  divers  goods 
and  chattels  of  them  the  plaintiffs,  —  to  wit,  bank  notes  amounting  in 
the  aggregate  to  the  sum  of  $11,250,  —  to  be  safely  and  securely  car- 
ried and  conveyed  in  the  said  vessel  from  the  city  of  New  York  to 
the  village  of  Newburgh,  for  hire  and  reward  then  and  there  paid  to 
Cruttenden  as  such  master  of  the  boat  and  agent  of  defendants,  in 
that  behalf.  It  is  then  averred  that  although  the  vessel  on  the  same 
day  arrived  at  Newburgh,  yet  that  the  defendants  and  their  agent, 
not  regarding  their  duty,  did  not  deliver  the  said  trunk  or  baggage 
containing  the  said  bank  notes  to  the  said  Phillips,  but  so  negli- 
gently, carelessly,  and  improperly  conducting  the  carriage  and  con- 
veyance thereof  that  for  want  of  due  care  in  the  defendants  and 
their  agents,  the  trunk  containing  the  bank  notes  aforesaid  was 
wholly  lost  to  the  plaintiffs,  to  wit,  at,  etc.  The  declaration  con- 
tained various  other  counts.  The  defendants  pleaded  the  general 
issue. 

On  the  trial  of  the  cause,  William  Phillips  was  sworn  as  a  witness 
on  the  part  of  the  plaintiffs,  and  testified  that  in  November,  1827,  he 
went  on  board  the  "Constellation"  at  the  city  of  New  York,  with 
the  intention  of  proceeding  to  Newburgh,  that  on  the  wharf  near  the 
boat  he  met  Cruttenden,  the  master  of  the  boat,  and  told  him  that 
he  had  a  trunk  of  importance  which  he  wanted  to  put  into  the  office. 
Cruttenden  answered,  "as  soon  as  we  get  under  weigh;"  to  which 
he  replied  that  he  wanted  it  in  immediately,  as  he  wished  to  go 
ashore.  Cruttenden  then  told  him  to  go  to  the  young  man  or  mate. 
He  accordingly  went  to  the  office  and  spoke  to  a  young  man  who 
appeared  to  be  doing  business  there,  and  told  him  he  had  a  trunk  of 
importance  which  he  wished  to  put  into  the  office.  The  young  man 
made  the  same  answer  as  the  master:  "as  soon  as  we  get  under 
weigh."  The  witness  said  he  wished  to  go  ashore,  and  was  then 
told,  "  Come  round  to  the  door ;  you  may  put  it  there, "  pointing  to  a 
place  behind  the  door.  The  witness  deposited  the  trunk  in  the  place 
pointed  out,  and  went  on  shore,  and  was  absent  eight  or  ten  minutes. 
While  on  shore  he  bought  some  oranges,  which  he  held  in  a  hand- 
kerchief until  the  boat  got  under  weigh,  when  he  went  to  the  office 
to  put  the  oranges  into  the  trunk,  and  found  that  it  was  gone.  He 
immediately  apprised  the  master  and  the  clerk  of  tlie  fact;  search 


36  CAKRIF.RS   OF   GOODS. 

was  made,  but  the  trunk  could  uot  be  found.  He  testified  that  there 
were  in  his  trunk,  when  he  went  on  board,  seven  sealed  jjack-wjen  of 
bank  note^t,  received  by  him  from  the  first  teller  of  the  Bank  of 
America,  and  which  he  had  been  requested  by  the  president  of  the 
Bank  of  Orange  County  to  carry  to  that  bank  from  tiie  Bank  of 
America.  When  he  received  tlie  packages,  the  j»resiaent  of  the 
Bank  of  Orange  County  told  him  that  it  was  his  practice  when  he 
had  charge  of  packages  of  money  to  carry  to  Goshen,  to  deliver  them 
to  the  captain  of  the  steamboat  immediately  ujton  going  on  board, 
and  advised  him  to  follow  the  same  course,  which  he,  the  witness, 
considered  as  a  direction  to  him,  and  acted  accordingly.  On  his 
cross-examination,  he  said  he  did  not  inform  the  clerk  that  his  trunk 
contained  bank  bills,  nor  did  he  ttdl  Crutteuden,  the  master  of  the 
boat,  that  it  contained  anything  more  than  his  own  property;  nor 
did  he  tell  him  that  he  was  going  to  Newburgh.  It  was  satisfac- 
torily proved  that  the  packages  contained  .?ll,2o0. 

The  plaintiffs  having  rested,  the  defendants'  counsel  moved  for  a 
nonsuit  on  various  grounds.  The  presiding  judge  ruled  that  the 
liability  of  the  defendants  rested  on  the  general  law  respecting  car- 
riers; that  it  admitted  of  some  doubt  whether  the  risk  in  this  case 
commenced  until  the  commencement  of  the  voyage;  that  it  was  mat- 
ter of  doubt  whether  the  defendants,  in  the  case  of  mere  baggage, 
were  insurers  for  more  than  the  property  of  the  passenger;  in  most 
cases  it  would  be  a  risk  without  compensation,  which  was  not  in  the 
spirit  of  the  law;  that  when  a  carrier  is  to  be  made  liable  for  bank 
bills,  not  made  up  in  a  package  pointing  to  its  contents,  common 
justice  required  that  he  should  be  informed  of  the  nature  of  his 
charge,  so  that  he  might  take  the  necessary  precautions  for  the 
safety  of  the  bills  and  for  his  own  protection;  that  in  liis  opinion 
the  information  of  Thillips  to  the  master  of  the  boat  of  tlie  value 
and  contents  of  the  trunk,  was  not,  under  all  the  circumstances  of 
the  case,  sufficient  to  entitle  the  plaintiff  to  recover,  and  on  that 
ground  he  directed  a  nonsuit.  A  nonsuit  was  accordingly  entered, 
which  the  plaintiffs  now  move  to  set  aside. 

Nel.son,  J.  This  case  is  peculiar  in  many  of  its  features,  ami 
must  be  determined  by  a  recurrence  to  some  of  the  general  and  fun- 
damental principles  whic^h  govern  actions  of  this  kind.  The  rule  of 
the  common  law  in  relation  to  common  carriers  has  been  frequently 
pronounced  a  rigorous  one,  and  its  vindication  by  Lord  Holt  affords 
abundant  evidence,  if  any  were  wanting,  of  the  trutli  of  tlie  obser- 
vation. He  says,  in  Lane  v.  Coulton,  1  Vin.  Abr.  219,  though  one 
may  think  it  a  hard  case  that  a  jxtor  carrier  tliat  is  robbed  on  the 
r<';i<I,  without  any  manner  of  default  in  liini,  sliould  be  answera])]e 
for  all  the  goodh  lit;  takes,  yet  the  inconveniency  would  be  far  more 
intoh-rable  if  it  were  not  so,  for  it  would  be  in  his  jjower  to  combine 
[with  roblxsrH,  or  to  pretend  a  robbery  or  some  other  accident,  with- 
|out  a  i>OH»ibility  of  a   remedy  to  tlie   party,  atid   tlie  luw  will   not 


WHO   ARE    COMMON   CARRIEES.  37 

expose  him  to  so  great  a  temptation.  This  reason,  which  I  believe 
is  the  only  one  that  has  ever  been  given  for  the  origin  of  the  rule, 
and  which  probably  had  much  foundation  in  fact  in  the  early  and 
rude  age  in  which  it  must  have  been  established,  it  is  obvious,  at 
this  day,  is  nearly  as  applicable  to  every  person  intrusted  with  the 
property  of  another,  as  it  is  to  the  common  carrier.  In  proportion, 
however,  to  the  rigor  of  the  liability,  was  exacted  the  compensation 
for  it  and  the  means  of  enforcing  payment,  which  affords  a  sort  of 
equivalent  for  the  harshness  of  the  rule.  Accordingly  we  find  it 
frequently  laid  down  in  actions  of  this  kind,  as  a  fundamental 
proposition,  that  the  common  carrier  is  liable  in  respect  to  his 
reward,  and  that  the  compensation  should  be  in  proportion  to  the 
risk.  So  strictly  was  this  rule  adhered  to  that  it  was  repeatedly 
decided  by  Lord  Holt  that  the  hackney  coachman  was  not  liable  for 
the  travelling  trunk  of  the  passenger  which  was  lost,  unless  a  dis- 
tinct price  had  been  paid  for  the  trunk  as  well  as  the  person;  and 
where  it  was  the  custom  of  the  stagecoach  for  passengers  to  pay  for 
baggage  above  a  certain  weight,  the  coachman  was  responsible  only 
for  the  loss  of  goods  beyond  such  weight.  1  Vin.  Abr.  220,  and 
cases  there  cited.  So  in  the  analogous  case  of  the  innkeeper,  if  a 
guest  stops  at  an  inn,  and  departs  for  a  few  days,  leaving  his  goods, 
if  they  are  stolen  during  his  absence,  the  landlord  is  not  liable  as 
innkeeper,  for  at  the  time  of  the  loss  the  owner  was  not  his  guest, 
and  he  had  no  benefit  from  the  keeping  of  the  goods.  Cro.  Jac. 
188;  1  Vin.  Abr.  225.  It  has  since  been  determined  that  the  stage 
coachman  is  responsible  for  the  baggage  of  the  passenger,  though  no 
distinct  price  was  paid  for  it,  upon  the  ground,  however,  still  con- 
sistent with  the  principle  of  the  above  cases;  to  wit,  that  the  reward 
for  carrying  the  same  was  included  in  the  fare  for  carrying  the 
passenger.     1  Wheaton's  Selwyn,  301,  n.  1. 

Now,  upon  the  ground  that  the  defendants  in  this  case  have 
received  no  compensation  or  reward  from  the  plaintiffs  or  any  other 
person  for  the  transportation  or  risk  of  the  money  in  question,  and 
that  they  were  deprived  of  such  reward  by  the  unfair  dealing  of  the 
agent  of  the  plaintiffs  with  the  defendants,  I  am  of  opinion  the 
plaintiffs  cannot_  recover,  and  that  they  were  properly  nonsuited 
upon  the  trial.  As  a  general  rule  where  there  has  been  no  qualified 
acceptance  of  goods  by  special  agreement,  or  where  an  agreement 
cannot  be  inferred  from  notice,  the  carrier  is  bound  to  make  inquiry 
as  to  the  value  of  the  box  or  article  received,  and  the  owner  must 
answer  truly  at  his  peril;  and  if  such  inquiries  are  not  made,  and  it 
is  received  at  such  price  for  transportation  as  is  asked  with  reference 
to  its  bulk,  weight,  or  external  appearance,  the  carrier  is  responsible 
for  the  loss,  whatever  may  be  its  value.  If  he  has  given  general 
notice  that  he  will  not  be  liable  over  a  certain  amount,  unless  the 
value  is  made  known  to  him  at  the  time  of  delivery  and  a  premium 
for  insurance  paid,  such  notice,  if  brought  home  to  the  knowledge 


33  CARRIERS   OF   GOODS. 

of  the  owner  (and  courts  and  juries  are  liberal  in  inferring  such 
knowledge  from  the  publifation  of  the  notice),  is  as  efteotual  in 
qualifying  the  acceptance  of  the  goods  as  a  special  agreement,  and 
the  owner,  at  his  peril,  must  disclose  the  value,  and  pay  the  premium. 
The  carrier  in  such  case  is  not  bound  to  make  the  inquiry,  and  if 
the  owner  omits  to  make  known  the  value,  and  does  not  therefore 
pay  the  premium  at  the  time  of  delivery,  it  is  considered  as  dealing 
unfairly  with  the  carrier,  and  he  is  liable  only  to  the  amount  men- 
tioned in  his  notice,  or  not  at  all,  according  to  the  terms  of  his 
notice.  1  Wheaton's  Selw.  305,  306,  308,  and  notes;  6  Com.  L. 
R.  333;  4  Burr.  2298;  5  Com.  L.  R.  470;  8  Pick.  182;  11  Com.  L. 
II.  243. 

In  this  case  no  notice  has  been  given  by  the  defendants  limiting 
their  responsibility,  and  they  are  no  doubt  liable  to  the  full  value  of 
the  baggage  of  the  passenger  lost,  or  of  the  goods  lost,  which  they 
had  received  without  any  special  agreement,  qualifying  the  risk  for 
transportation.  The  defendants  cannot  succeed  upon  this  ground. 
But  in  the  absence  of  notice,  if  any  means  are  used  to  conceal  the 
value  of  the  article,  and  thereby  the  owner  avoids  paying  a  reason- 
able compensation  for  the  risk,  this  unfairness  and  its  consequence 
to  the  defendants,  upon  the  principles  of  common  justice  as  well  as 
those  peculiar  to  this  action,  will  exempt  them  from  the  respon- 
sibility; for  such  a  result  is  alike  due  to  the  defendants,  who  have 
received  no  reward  for  the  risk,  and  to  the  party  who  has  been  the 
cause  of  it  by  means  of  disingenuous  and  unfair  dealing.  Tlius, 
where  the  plaintiff  delivered  to  the  carrier  a  box,  ti'lling  him  there 
was  a  book  and  tobacco  in  it,  when  it  contained  one  hundred  pounds, 
and  it  was  lost,  he  should  not  recover.  It  is  true  that  in  such  a  case 
a  party  did  recover,  tliough  Rolle,  C.  J.,  considered  it  a  cheat;  but 
it  is  clear  that  at  this  day  he  could  not  recover.     4  P>urr.  2301. 

So  where  a  box,  in  which  there  was  a  large  sum  of  money,  was 
brought  to  a  carrier,  wlio  inquired  its  contents,  and  was  answered  it 
was  filled  with  silk,  upon  which  it  was  taken  and  lost,  it  was  held 
the  owner  could  not  recover.  Ibid.  So  where  a  bag  sealed  was 
delivered  to  a  carrier,  and  was  said  to  contain  two  hundred  pounds, 
and  a  receipt  was  given  for  the  same,  when,  in  fact,  it  contained 
four  hundred  pounds,  and  it  was  lost,  the  carrier  was  held  answer- 
able only  for  the  two  hundred  j.ounds,  as  the  reward  extended  no 
farther.  4  Burr.  2301;  Selw.  30;")  (n.)  These  cases  all  jiroceed  upon 
the  ground  tliat  the  carrier  is  deprived  of  his  reward  for  the  extra 
value  of  the  article,  and  consequent  extra  risk  incurred,  by  means 
of  the  unfair  if  not  fraudulent  conduct  of  the  owner,  and  therefore 
the  riwir  of  tljo  rnmmon-law  rule  i.s  not  aiqdied  to  him,  and  he  is 
onl-  •  for  thn  loss  in  case  of  gross  negligence.     If 

tin-  ,,  bi' made  rpsjionsible  to  the  plaintitTs  tlirougli 

the  medium  and  acts  of  tlieir  agent,  who  was  emidoyed  to  carry  i\w 
money  frrini  New  York  to  the  bank,  the  ])l:iintifrs  also  must  be  held 


WHO    ARE    COMMON    CAERIERS.  39 

responsible  to  the  defendant  for  his  conduct;  the  obligation  must  be 
reciprocal.  Instead  of  committing  the  several  packages  of  money  to 
the  captain,  which  of  themselves  generally  indicate  their  value,  and 
in  this  case  would  have  done  so,  as  the  figures  (by  which  I  under- 
stand the  quantity  of  money  in  each  package)  could  be  seen  upon 
them,  and  thereby  enable  the  captain  to  exact  a  reasonable  compen- 
sation for  the  risk,  and  apprise  him  of  the  necessity  of  greater  care 
and  caution  in  the  safe  conveyance  of  the  money,  which  he  naturally 
would  bestow  in  proportion  to  the  value,  the  agent  of  the  plaintiffs 
put  them  into  his  trunk,  and  committed  it  to  the  captain  as  his  bag- 
gage, affording  no  other  indication  of  the  value  of  its  contents  than 
that  it  was  a  trunk  of  importance.  This  was  enough  to  attract  the 
attention  of  the  felon  who  might  be  standing  by  to  its  contents,  but 
certainly  was  not  calculated  to  afford  information  to  the  captain  of 
the  extraordinary  character  and  value  of  those  contents.  The  cap- 
tain might  understand  he  had  a  costly  wardrobe  and  other  neces- 
saries and  conveniences  for  travelling  of  great  value,  but  not  that 
the  trunk  contained  eleven  thousand  dollars  in  bank  bills,  which  the 
traveller  was  carrying  for  hire  or  friendship,  and  not  as  travelling 
expenses. 

It  may  be  difficult  to  define  with  technical  precision  what  may 
legitimately  be  included  in  the  term  baggage,  as  used  in  connection 
with  travelling  in  public  conveyances ;  but  it  may  be  safely  asserted 
that  money ,  except  what  may  be  carried  for  the  expenses  of  travel- 
linj;,  is  not  thus  included,  and  especially  a  sum  like  the  present, 
which  was  taken  for  the  mere  purpose  of  transportation.  We  have 
already  seen  that  formerly  so  strict  was  the  rule  that  the  carrier  was 
liable  only  in  respect  to  the  reward  adhered  to,  that  he  was  not  held 
liable  for  the  loss  of  the  baggage  of  the  passenger  unless  a  distinct 
price  was  paid  for  it.  The  law  is  now  very  properly  altered,  as  a 
reasonable  amount  of  baggage,  by  custom  or  the  courtesy  of  the  car- 
rier, is  considered  as  included  in  the  fare  for  the  person ;  but  courts 
ought  not  to  permit  this  gratuity  or  custom  to  be  abused,  and  under 
pretence  of  baggage  to  include  articles  not  within  the  sense  or  mean- 
ing of  the  term,  or  within  the  object  or  intent  of  the  indulgence  of 
the  carrier,  and  thereby  defraud  him  of  his  just  compensation,  and 
subject  him  to  unknown  and  illimitable  hazards.  If  the  amount  of 
money  in  the  trunk  in  this  case  is  not  fairly  included  under  the 
term  baggage,  as  used  in  the  connection  we  here  find  it  (and  I  can- 
not think  it  is),  then  the  conduct  of  the  agent  was  a  virtual  conceal- 
ment of  that  sum;  his  representation  of  his  trunk  and  the  contents 
as  baggage  was  not  a  fair  one,  and  was  calculated  to  deceive  the 
captain;  and  it  would  be  a  violation  of  first  principles  to  permit  the 
plaintiffs  to  recover.  The  case  of  Miles  v.  Cattle  et  al.,  19  Com.  L. 
R.  219,  in  some  respects  resembles  this  case.  The  plaintiff  was 
going  to  L.,  and  took  a  seat  in  a  public  conveyance.  He  had  with 
him  a  bag  labelled  "T.  Miles,  traveller,"  containing  clothes  worth 


40  CARRIERS   OF   GOODS. 

about  fifteen  pounds.  Before  he  started,  G.  delivered  liim  a  parcel 
containing  a  fifty-pound  bank  note,  addressed  to  an  attorney  in  L., 
which  the  plaintiff  was  desired  to  book  at  the  defendants'  office,  and 
to  be  forwarded  by  the  defendants  to  L.  The  plaintiff,  instead  of 
doing  so,  put  the  parcel  in  his  own  bag,  intending  to  convey  it  to  L. 
himself.  If  the  parcel  had  been  sent  by  the  defendants,  it  would 
have  cost  four  shillings  and  sixpence.  The  bag  and  contents  were 
lost.  The  verdict  was  found  for  the  fifteen  pounds,  with  leave  to 
apply  to  increase  it,  on  the  facts  in  the  case,  by  adding  the  fifty 
jjounds.  The  court  denied  the  application,  principally  upon  the 
ground  that  the  plaintiff  had  no  interest  in  the  fifty  pounds.  But  it 
was  conceded  by  the  court  that  the  owner  could  not  recover  on  the 
facts.  Tindale,  J.,  says,  in  violation  of  his  trust  the  plaintiff 
thought  proper  not  to  deliver  the  parcel  to  the  defendants,  but  to 
deposit  it  in  his  own  bag;  thereby  depriving  the  owner  of  any 
remedy  he  might  have  had  against  the  defendants,  and  the  defend- 
ants of  tlie  sum  they  would  otherwise  have  earned  for  the  carriage  of 
the  parcel.  In  this  case  the  president  of  the  bank  directed  I'liillips 
to  commit  the  packages  directly  to  the  captain,  and  had  he  followed 
such  directions,  the  captain  would  have  been  enabled  to  charge  a 
reward  for  the  carriage  of  the  same,  and  the  captain,  or  the  defend- 
ants, would  have  been  responsible  for  its  safety.  His  omission  to 
follow  the  directions  was  a  violation  of  his  trust,  for  which  the 
defendants  are  not  accountable. 

It  was  decided  in  Sewall  v.  Allen  et  uL,  in  the  Court  of  Errors, 
6  Wend.  330,  that  the  Dutchess  and  Orange  Steamboat  Company, 
and  the  members  thereof,  were  not  liable  for  the  loss  of  packages 
of  bank  bills  intrusted  to  the  captain  of  tlie  boat,  on  the  ground  that 
the  carriage  of  bank  bills  was  not  within  the  ordinary  business  of 
the  company;  and  so  far  as  the  usage  extended,  it  was  a  personal 
trust  committed  to  the  captain,  who  alone  received  the  compensa- 
tion, or,  in  other  words,  tlie  company  were  neither  by  their  charter 
or  usage  under  it,  ctjmmon  carriers  of  bank  bills.  From  tlie  facts 
appearing  in  that  case,  I  presume  the  principle  here  decided  by  the 
highest  judicial  tribunal  in  the  State  would  be  equally  ajiplicable  to 
thi.s  comjjany,  though  from  the  direction  the  cause  took  upon  the 
trial,  facts  sufficient  do  not  appear  to  raise  the  rpiestion.  If  so,  it 
seems  to  me  impossible  to  maintain  the  proposition  that  tlie  defend- 
ants would  be  holden  responsible  for  the  loss  of  an  article  in  the 
trunk  of  a  pa.ssenger,  which  in  no  sense  of  the  term  can  be  con- 
sidered a  part  of  the  baggage  of  the  passenger,  and  for  the  transpor- 
t  •■  vhich  no  compensation  is  reoeiverl  by  the  comj)any,  when, 

C'.  y,  they  would  not  be  accountable  for  the  same  article,  if 

it  had   iKjen  committed  directly  to  the  care  of  the  cajitain,  :ind  a 

T' •    '  ■'•   reward    paid   him    for   transportation.      It    is   said   the 

•  i  l>otween  the  cases  consists  in  this,  that  in  the  one  case  it 

i»  a  part  of  the  baggage  of  the  passenger,  the  carrying  of  which  is 


WHO   ARE   COMMON   CARRIERS.  41 

■within  the  ordinary  business  of  the  company,  and  for  which  they 
receive  the  reward,  and  in  the  other  it  is  a  private  transaction 
between  the  owner  and  the  captain;  the  answer  I  think  is,  that  ] jut- 
ting the  article  in  the  trunk  does  not  make  it  baggage.  If  it  is 
inchided  within  that  term,  it  is  as  much  baggage  when  distinctly 
committed  to  the  care  of  the  captain  as  when  in  the  trunk;  the 
place  in  which  it  is  cannot,  in  this  instance,  at  least,  vary  the  char- 
acter of  the  article  or  the  transaction ;  the  object  is  the  transporta- 
tion of  the  money,  without  reference  to  a  connection  with  the  person 
of  the  passenger. 

Having  come  to  the  conclusion  upon  what  I  view  as  the  merits 
and  principle  of  the  case,  that  the  plaintiffs  cannot  recover,  it  is 
unimportant  to  examine  any  other  question  discussed  upon  the 
argument. 

Motion  for  a  new  trial  denied. 


KAILROAD  COMPANY  v.   FRALOFF. 
100  U.  S.  24.     1879. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  a  judgment  rendered  against  the  New 
York  Central  and  Hudson  River  Railroad  Company,  in  an  action  by 
Olga  de  Maluta  Fraloff  to  recover  the  value  of  certain  articles  of 
wearing  apparel  alleged  to  have  been  taken  from  her  trunk  while 
she  was  a  passenger  upon  the  cars  of  the  company,  and  while  the 
trunk  was  in  its  charge  for  transportation  as  part  of  her  baggage. 

There  was  evidence  before  the  jury  tending  to  establish  the  fol- 
lowing facts : — 

The  defendant  in  error,  a  subject  of  the  Czar  of  Russia,  possess- 
ing large  wealth,  and  enjoying  high  social  position  among  her  own 
people,  after  travelling  in  Europe,  Asia,  and  Africa,  spending  some 
time  in  London  and  Paris,  visited  America  in  the  year  1869,  for  the 
double  purpose  of  benefiting  her  health  and  seeing  this  country. 
She  brought  with  her  to  the  United  States  six  trunks  of  ordinary 
travel-worn  appearance,  containing  a  large  quantity  of  wearing 
apparel,  including  many  elegant,  costly  dresses,  and  also  rare  and 
valuable  laces,  w-hich  she  had  been  accustomed  to  wear  upon  different 
dresses  when  on  visits,  or  frequenting  theatres,  or  attending  dinners, 
balls,  and  receptions.  A  portion  of  the  laces  was  made  by  her 
ancestors  upon  their  estates  in  Russia.  After  remaining  some  weeks 
in  the  city  of  New  York,  she  started  upon  a  journey  westward,  going 


42  CARRIERS   OF   GOODS. 

first  to  Albany,  and  taking  with  her,  among  other  things,  two  of  the 
trunks  brought  to  this  country.  Her  ultimate  purpose  was  to  visit  a 
warmer  climate,  and,  upon  reaching  Chicago,  to  determine  whether 
to  visit  California,  New  Orleans,  Havana,  and  probably  Kio  Janeiro. 
After  passing  a  day  or  so  at  Albany,  she  took  ])assage  on  the  cars  of 
the  New  York  Central  and  Hudson  Hiver  Kailroad  Company  for 
"yia■^^ra  Falls,  dtdivering  to  the  authorized  agents  of  the  com]'any 
for  transportation  as  hi-r  bairgage  the  two  tnuiks  above  desrrilied, 
which  contained  the  larger  ])ortion  of  the  dress-hices  brought  with 
her  from  Europe.  Upon  arriving  at  Niagara  Falls  she  ascertained 
that  one  of  the  trunks,  during  trans])ortationsfrom  Albany  to  the 
Falls,  luid  been  materially  injured,  its  locks  l^roken,  its  contents 
disturbed,  and  mure  than  two  liundred  yards  of  dress-lace  abstracted 
from  the  trunk,  in  which  it  had  been  carefully  placed  before  she  left 
the  city  of  New  York.  The  company  declined  to  pay  the  sum 
demanded  as  the  value  of  the  missing  laces;  and,  having  denied  all 
liability  therefor,  this  action  was  instituted  to  recover  the  damages 
which  the  defendant  in  error  claimed  to  have  sustained  by  reason  of 
the  loss  of  her  property. 

Upon  the  first  trial  of  the  case,  in  1873,  the  jury,  being  unable 
to  agree,  was  discharged.  A  second  trial  took  place  in  the  year 
1875.  Upon  the  conclusion  of  the  evidence  in  chief  at  the  last  trial, 
the  company  moved  a  dismissal  of  the  action,  and,  at  the  same  time, 
submitted  numerous  instructions  which  it  asked  to  be  then  given  to 
the  jury,  among  which  was  one  peremptorily  directing  a  verdict  in 
its  favor.  That  motion  was  overruled,  and  the  court  declined  to 
instruct  the  jury  as  requested.  Subsequently,  upon  the  conclusion 
of  the  evidence  upon  both  sides,  the  motion  for  a  peremptory  instruc- 
tion in  behalf  of  the  company  was  renewed,  and  again  overruled. 
The  court  thereupon  gave  its  charge,  to  which  the  company  filed 
numerous  exceptions,  and  also  submitted  written  requests,  forty- 
two  in  number,  for  instructions  to  the  jury.  The  court  refused  to 
instruct  the  jury  as  asked,  or  otherwise  tlian  as  shown  in  its  own 
charge.  To  the  action  of  the  court  in  the  several  respects  indicated 
thf  company  excepted  in  due  form.  The  jury  returned  a  verdict 
against  the  comi)aiiy  for  tlic  sum  of  .S1'>.0"0,  altliough  the  evidence, 
in  some  of  its  a.spects,  jdaced  the  value  of  the  missing  laces  very  far 
in  excess  of  that  amount. 

It  would  extend  this  opinion  to  an  imi)roper  length,  and  could 
serve  no  useful  purpose,  were  we  to  enter  upon  a  discussion  of  the 
various  excejjtions,  unusual  in  tlieir  number,  to  the  action  of  the 
court  in  the  admission  and  exclusion  of  evidence,  as  well  as  in  refus- 
ing to  charge  the  jury  as  recpiestod  by  the  coni])any.  Certain  con- 
trolling propositions  are  presented  for  our  consideration,  and  u])on 
their  determination  the  substantial  rights  of  parties  seem  to  depend. 
If,  in  rcBpect  of  these  projmsition.s,  no  error  was  committed,  the 
judgment  should  be  affirmed  without  any  reference  to  jujints  of  a 


WHO   AKE   COMMON   CARRIERS.  43 

minor  and  merely  technical  nature,  which  do  not  involve  the  merits 
of  the  case,  or  the  just  rights  of  the  parties. 

In  behalf  of  the  company  it  is  earnestly  claimed  that  the  court 
erred  in  not  giving  a  peremptory  instruction  for  a  verdict  in  its 
behalf.  This  position,  however,  is  wholly  untenable.  Had  there 
been  no  serious  controversy  about  the  facts,  and  had  the  law  upon 
the  undisputed  evidence  precluded  any  recovery  whatever  against 
the  company,  such  an  instruction  would  have  been  proper.  1  Wall. 
369;  11  How.  372;  19  id.  269;  22  Wall.  121.  The  court  could  not 
have  given  such  an  instruction  in  this  case  without  usurping  the 
functions  of  the  jury.  This  will,  however,  more  clearly  appear 
from  what  is  said  in  the  course  of  this  opinion. 

The  main  contention  of  the  company,  upon  the  trial  below,  was 
that  good  faith  required  the  defendant  in  error,  when  delivering  her 
trunks  for  transportation,  to  inform  its  agents  of  the  j)eculiar  char- 
acter and  extraordinary  value  of  the  laces  in  question ;  and  that  her 
failure  in  that  respect,  whether  intentional  or  not,  was,  in  itself,  a 
fraud  upon  the  carrier,  which  should  prevent  any  recovery  in  this 
action. 

The  Circuit  Court  refused,  and,  in  our  opinion,  rightly,  to  so 
instruct  the  jury.  We  are  not  referred  to  any  legislative  enactment 
restricting  or  limiting  the  responsibility  of  passenger  carriers  by 
land  for  articles  carried  as  baggage.  Nor  is  it  pretended  that  the 
plaintiff  in  error  had,  at  the  date  of  these  transactions,  established 
or  promulgated  any  regulation  as  to  the  quantity  or  the  value  of 
baggage  which  passengers  upon  its  cars  might  carry,  without  extra 
compensation,  under  the  general  contract  to  carry  the  person. 
Further,  it  is  not  claimed  that  any  inquiry  was  made  of  the  defend- 
ant in  error,  either  when  the  trunks  were  taken  into  the  custody  of 
the  carrier,  or  at  any  time  prior  to  the  alleged  loss,  as  to  the  value 
of  their  contents.  It  is  undoubtedly  competent  for  carriers  of  pas- 
sengers, by  specific  regulations,  distinctly  brought  to  the  knowledge 
of  the  passenger,  which  are  reasonable  in  their  character  and  not 
inconsistent  with  any  statute  or  their  duties  to  the  public,  to  protect 
themselves  against  liability,  as  insurers,  for  baggage  exceeding  a 
fixed  amount  in  value,  except  upon  additional  compensation,  pro- 
portioned to  the  risk.  And  in  order  that  such  regulations  may  be 
practically  effective,  and  the  carrier  advised  of  the  full  extent  of  its 
responsibility,  and,  consequently,  of  the  degree  of  precaution  neces- 
sary upon  its  part,  it  may  rightfully  require,  as  a  condition  precedent 
to  any  contract  for  the  transportation  of  baggage,  information  from 
the  passenger  as  to  its  value ;  and  if  the  value  thus  disclosed  exceeds 
that  which  the  passenger  may  reasonably  demand  to  be  transported 
as  baggage  without  extra  compensation,  the  carrier,  at  its  option, 
can  make  such  additional  charge  as  the  risk  fairly  justifies.  It  is 
also  undoubtedly  true  that  the  carrier  may  be  discharged  from  lia- 
bility for  the  full  value  of  the  passenger^s  baggage,  if  the  latter,  by 


44  CARRIERS   OF   GOODS. 

false  statements,  or  by  any  device  or  artifice,  puts  off  inquiry  as  to 
such  value,  whereby  is  imposed  upon  the  carrier  responsibility 
beyond  what  it  was  bound  to  assume  in  consideration  of  the  ordinary 
fare  charged  for  the  transportation  of  the  person.  But  in  the 
absence  of  legislation  limiting  the  responsibility  of  carriers  for  the 
baggage  of  passengers;  in  the  absence  of  reasonable  regulations  upon 
the  subject  by  the  carrier,  of  which  the  passenger  has  knowledge ; 
in  the  absence  of  inquiry  of  the  passenger  as  to  the  value  of  the 
articles  carried,  under  the  name  of  baggage,  for  his  personal  use  and 
convenience  when  travelling;  and  in  the  absence  of  conduct  upon 
the  part  of  the  passenger  misleading  the  carrier  as  to  the  value  of  his 
baggage,  — the  court  cannot,  as  matter  of  law,  declare,  as  it  was  in 
effect  requested  in  this  case  to  do,  that  the  mere  failure  of  the  pas- 
senger, unasked,  to  disclose  the  value  of  his  baggage,  is  a  fraud 
upon  the  carrier,  which  defeats  all  rights  of  recovei-y;^  The  instruc- 
tions asked  by  the  company  virtually  assumed  that  the  general  law 
governing  the  rights,  duties,  and  responsibilities  of  passenger  car- 
riers, prescribed  a  definite,  fixed  limit  of  value,  beyond  which  the 
carrier  was  not  liable  for  baggage,  except  under  a  special  contract  or 
upon  previous  notice  as  to  value.  We  are  not,  however,  referred  to 
any  adjudged  case,  or  to  any  elementary  treatise  which  sustains  that 
proposition,  without  qualification.  In  the  very  nature  of  things,  no 
such  rule  could  be  established  by  the  courts  in  virtue  of  any  inherent 
power  they  possess.  The  quantity  or  kind  or  value  of  the  baggage 
which  a  passenger  may  carry  under  the  contract  for  the  transporta- 
tion of  his  person  depends  upon  a  variety  of  circumstances  which  do 
not  exist  in  eveiy  case.  "That  which  one  traveller,"  says  Erie, 
C.  J.,  in  Philpot  v.  Northwestern  llailway  Co.,  19  C.  B.  x.  s.  321, 
"would  consider  indispensable,  would  be  deemed  superfluous  and 
unnecessary  by  another.  But  the  general  habits  and  wants  of  man- 
kind will  be  taken  in  the  mind  of  the  carrier  when  he  receives  a 
passenger  for  conveyance."  Some  of  the  cases  seem  to  announce  the 
broad  doctrine  that,  by  general  law,  in  the  absence  of  legislation, 
or  special  regulations  by  the  carrier,  of  the  character  indicated, 
a  passenger  may  take,  without  extra  compensation,  such  articles 
adapted  to  personal  use  as  his  necessities,  comfort,  convenience,  or 
even  gratification  may  suggest;  and  that  whatever  may  be  the  quan- 
tity or  value  of  such  articl(;s,  the  carrier  is  responsible  for  all  damage 
or  loss  to  them,  from  whatever  source,  unless  from  the  act  of  God  or 
the  public  enemy.  But  tliat,  in  our  judgment,  is  not  an  accurate 
stateiiif-nt  of  tlif  law.  Whether  articles  of  wearing  a])parel,  in  any 
jiartifular  case,  constitute  baggag»s  as  that  term  is  understood  in  the 
law,  for  whicli  the  carrier  is  responsible  as  insurer,  depends  uj.on 
the  inquiry  wliether  they  are  such  in  tpiantity  and  value  as  passen- 
gers under  like  circumstances  ordinarily  or  usually  carry  for  ]>er- 
sonal  use  wlicn  travelling.  "The  imi)lied  undertaking,"  says  Mr. 
Angell,  "of  the  proprietors  of  stagecoaclies ,  railroads,   and  steam- 


WHO   ARE   COMMON   CARRIERS.  45 

boats  to  carry  in  safety  the  baggage  of  passengers  is  not  unlimited, 
and  cannot  be  extended  beyond  ordinary  baggage,  or  such  baggage 
as  the  traveller  usually  carries  with  him  for  his  personal  con- 
venience." Angell,  Carriers,  sec.  115.  In  Hannibal  Railroad  y. 
Swift,  12  Wall.  272  [54] ,  this  court,  speaking  through  Mr.  Justice 
Field,  said  that  the  contract  to  carry  the  person  "  only  implies  an 
undertaking  to  transport  such  a  limited  quantity  of  articles  as  are 
ordinarily  taken  by  travellers  for  their  personal  use  and  convenience, 
such  quantity  depending,  of  course,  upon  the  station  of  the  party, 
the  object  and  length  of  his  journey,  and  many  other  considera- 
tions." To  the  same  effect  is  a  decision  of  the  Queen's  Bench  in 
Macrow  v.  Great  Western  Railway  Co.,  Law  Rep.  6  Q.  B.  121, 
where  Chief  Justice  Cockburn  announced  the  true  rule  to  be  "that 
whatever  the  passenger  takes  with  him  for  his  personal  use  or  con- 
venience, according  to  the  habits  or  wants  of  the  particular  class  to 
which  he  belongs,  either  with  reference  to  the  immediate  necessities 
or  to  the  ultimate  purpose  of  the  journey,  must  be  considered  as 
personal  luggage."  2  Parsons,  Contr.,  199.  To  the  extent,  there- 
fore, that  the  articles  carried  by  the  passenger  for  his  personal  use 
exceed  in  quantity  and  value  such  as  are  ordinarily  or  usually 
carried  by  passengers  of  like  station  and  pursuing  like  journeys, 
they  are  not  baggage  for  which  the  carrier  by  general  law  is  respon- 
sible as  insurer.  In  cases  of  abuse  by  the  passenger  of  the  privilege 
which  the  law  gives  him,  the  carrier  secures  such  exemption  from 
responsibility,  not,  however,  because  the  passenger,  uninquired  of, 
failed  to  disclose  the  character  and  value  of  the  articles  carried,  but 
because  the  articles  themselves,  in  excess  of  the  amount  usually  or 
ordinarily  carried,  under  like  circumstances,  would  not  constitute 
baggage  within  the  true  meaning  of  the  law.  The  laces  in  question 
confessedly  constituted  a  part  of  the  wearing  apparel  of  the  defend- 
ant in  error.  They  were  adapted  to  and  exclusively  designed  for 
personal  use,  according  to  her  convenience,  comfort,  or  tastes,  during 
the  extended  journey  upon  which  she  had  entered.  They  were  not 
merchandise,  nor  is  there  any  evidence  that  they  were  intended  for 
sale  or  for  purposes  of  business.  Whether  they  were  such  articles  in 
quantity  and  value  as  passengers  of  like  station  and  under  like  cir- 
cumstances ordinarily  or  usually  carry  for  their  personal  use,  and  to 
subserve  their  convenience,  gratification,  or  comfort  while  travel- 
ling, was  not  a  pure  question  of  law  for  the  sole  or  final  determina- 
tion of  the  court,  but  a  question  of  fact  for  the  jury,  under  proper 
guidance  from  the  court  as  to  the  law  governing  such  cases.  It  was 
for  the  jury  to  say  to  what  extent,  if  any,  the  baggage  of  defendant 
in  error  exceeded  in  quantity  and  value  that  which  was  usually 
carried  without  extra  compensation,  and  to  disallow  any  claim  for 
such  excess. 

Upon  examining  the  carefully  guarded  instructions  given  to  the 
jury,  we  are  unable  to  see  that  the  court  below  omitted  anything 


46  CAKKIEKS   OF   GOODS. 

essential  to  a  clear  comprehension  of  the  issues,  or  announced  any 
principle  or  doctrine  not  in  harmony  with  settled  law.  After  sub- 
mitting to  the  jury  the  disputed  question  as  to  whether  the  laces 
were,  in  fact,  in  the  trunk  of  the  defendant  in  error,  when  delivered 
to  the  company  at  Albany  for  transportation  to  Niagara  Falls,  the 
court  charged  the  jury,  in  substance,  that  every  traveller  was 
entitled  to  provide  for  the  exigencies  of  his  journey  in  the  Avay  of 
baggage,  was  not  limited  to  articles  which  were  absolutely  essential, 
but  could  carry  such  as  were  usually  carried  by  persons  travelling, 
for  their  comfort,  convenience,  and  gratification  upon  such  journeys; 
that  the  liability  of  carriers  could  not  be  maintained  to  the  extent 
of  making  them  responsible  for  such  unusual  articles  as  the  excep- 
tional fancies,  habits,  or  idiosyncrasies  of  some  particular  individual 
may  prompt  him  to  carry;  that  their  responsibility  as  insurers  was 
limited  to  such  articles  as  it  was  customary  or  reasonable  for 
travellers  of  the  same  class,  in  general,  to  take  for  sucli  journeys 
as  the  one  which  was  the  subject  of  inquiry,  and  did  not  extend  to 
those  which  the  caprice  of  a  particular  traveller  might  lead  that 
traveller  to  take;  that  if  the  company  delivered  to  the  defendant  in 
error,  aside  from  the  laces  in  question,  baggage  which  had  been 
carried,  and  which  was  sufficient  for  her  as  reasonable  baggage, 
within  the  rules  laid  down,  slie  was  not  entitled  to  recover;  that  if 
she  carried  the  laces  in  question  for  the  purpose  of  having  them 
safely  kept  and  stored  by  the  railroad  companies  and  hotel-keepers, 
and  not  for  the  purpose  of  using  them,  as  occasion  might  require, 
for  her  gratification,  comfort,  or  convenience,  the  com})any  was  not 
liable;  that  if  any  liortion  of  the  missing  articles  were  reasonable 
and  proper  for  her  to  carry,  and  all  was  not,  they  sliould  allow  her 
the  value  of  that  jjortion. 

Looking  at  the  whole  scope  and  bearing  of  the  charge,  and  inter- 
preting wliat  was  said,  as  it  must  necessarily  have  been  understood 
both  by  the  court  and  jury,  we  do  not  perceive  that  any  error  was 
committed  to  the  prejudice  of  the  company,  or  of  which  it  can  com- 
plain. No  error  of  law  a])i)earing  U])on  tlie  record,  this  court  cannot 
reverse  the  judgment  because,  upon  examination  of  the  evidence,  we 
may  be  of  the  opinion  that  tlie  jury  should  have  returned  a  verdict 
for  a  less  amount.  If  the  jury  acted  upon  a  gross  mistake  of  facts, 
or  were  governed  by  some  improper  infiuence  or  bias,  the  remedy 
therefore  rested  with  the  court  Ijclow,  under  its  gfiicral  power  to  set 
aside  the  verdict.  I>ut  that  court  finding  that  the  verdict  was  abun- 
dantly sustained  ])y  the  evidence,  and  that  there  was  no  ground  to 
8upp(j.se  tliat  the  jury  had  not  performed  their  duty  imi)artially  and 
justly,  refused  to  disturb  tlie  verdict,  and  overruled  a  motion  for  a 
new  trial.  Whcithcr  its  action,  in  that  jiarticular,  was  j'rroneous  or 
not,  our  power  is  restricted  ])y  the  Constitution  to  the  determination 
of  tlie  questions  of  law  arising  uj)On  the  record.  Our  authority  does 
not  extend  to  a  re-examination  of  facts  wliich  liave  been  tried  by  the 


WHO   ARE   COMMON   CARRIERS.  47 

jury  under  instructions  correctly  defining  the  legal  rights  of  parties. 
Parsons  v.  Bedford,  3  Pet.  446;  21  How.  167;  Insurance  Company 
V.  Folsom,  18  Wall.  249. 

It  is,  perhaps,  proper  to  refer  to  one  other  point  suggested  in  the 
elaborate  brief  of  counsel  for  the  company.  Our  attention  is  called 
to  section  4281  of  the  Kevised  Statutes,  which  declares  that  "  if  any 
shipper  of  platina,  gold,  gold-dust,  coins,  jewelry,  .  .  .  trinkets, 
.  .  .  silk  in  a  manufactured  or  unmanufactured  form,  whether 
wrought  up  or  not  wrought  up  with  any  other  material,  furs  or 
laces,  or  any  of  them,  contained  in  any  parcel,  package,  or  bundle, 
shall  lade  the  same  as  freight  or  baggage  on  any  vessel,  without,  at 
the  time  of  such  lading,  giving  to  the  master,  clerk,  agent,  or  owner 
of  such  vessel  receiving  the  same,  a  written  notice  of  the  true  char- 
acter and  value  thereof,  and  having  the  same  entered  on  the  bill  of 
lading  therefor,  the  master  and  owner  of  such  vessels  shall  not  be 
liable  as  carriers  thereof  in  any  form  or  manner;  nor  shall  any 
such  master  or  owner  be  liable  for  any  of  such  goods  beyond  the 
value  and  according  to  the  character  thereof,  so  notified  and 
entered." 

It  is  sufficient  to  say  that  the  section  has  no  application  whatever 
to  this  case.  It  has  reference  alone  to  the  liability  of  carriers  by 
■v^ter  who  transport  goods  and  merchandise  of  the  kind  designated. 
It  has  no  reference  to  carriers  by  land,  and  does  not  assume  to 
declare  or  restrict  their  liability  for  the  baggage  of  passengers. 

Judgment  affirmed. 

Mr.  Justice  Field,  with  whom  concurred  Mr.  Justice  Miller 
and  Mr.  Justice  Strong,  dissenting. 

I  dissent  from  the  judgment  of  the  court  in  this  case.  I  do  not 
think  that  two  hundred  and  seventy-five  yards  of  lace,  claimed  by 
the  owner  to  be  worth  $75,000,  and  found  by  the  jury  to  be  of  the 
value  of  $10,000,  can,  as  a  matter  of  law,  be  properly  considered  as 
baggage  of  a  passenger  for  the  loss  of  which  the  railroad  company, 
in  the  absence  of  any  special  agreement,  should  be  held  liable. 


KANSAS   CITY,    etc.    R.    CO.   v.    MOERISON. 

34  Kan.  502.     I8860 

Ox  March  2,  1884,  William  Morrison  filed  his  petition  against  the 
Kansas  City,  Fort  Scott  &  Gulf  Railroad  Company,  in  the  District 
Court  of  Labette  County,  to  recover  $495.12,  with  interest  thereoii 
from  February  8,  1884,  the  alleged  value  of  certain  wearing  apparel 
and  tools^  The  petition  also  averred  that  the  railroad  company 
was  a  corporation  operating  a  railroad  from  Fort  Scott  to  Parsons, 


48  CARRIERS   OF   GOODS. 

and  was  a  carrier  of  passengers  between  those  points  on  February  8, 
18S4,  anel  subsequent  thereto;  that  the  plaintiff  on  said  date  was  a 
watchmaker  and  jeweller,  and  that  tlie  articles  described  in  the  peti- 
tion constituted  the  tools  necessarily  used  by  him  in  carrying  on  his 
occupation;  that  on  said  Februarys,  the  plaintiff  was  a  passenger 
on  the  railroad  from  Fort  Scott  to  Parsons,  and  at  the  same  time 
delivered  his  trunk  to  the  company  to  be  carried  as  baggage  between 
said  points;  that  plaintiff  arrived  in  Parsons  on  said  day,  and  at 
once  and  on  several  occasions  thereafter  demanded  of  the  company 
a  delivery  of  his  baggage,  which  was  refused  until  February  23; 
that  the  trunk  was  delivered  on  that  day,  but  that  the  wearing 
apparel  and  tools  described  in  the  petition  were  missing  from  it; 
and  that  such  loss  was  caused  by  the  negligence  of  the  conipanj'. 

HoRTOX,  C.  J.  .  .  .  The  evidence  on  the  part  of  the  railroad 
company  established  that  the  trunk  reached  Parsons  on  February  9, 
1884 ;  that  it  was  apparently  in  good  order  when  it  arrived ;  that  on 
February  15,  the  depot  was  burglarized,  and  the  trunk  broken  open 
and  robbed. 

The  jury  found  that  the  plaintiff  demanded  his  trunk  on  February 
9,  1884,  and  again  demanded  it  on  February  11;  and  these  findings 
are  supported  by  the  evidence  because  the  demand  made  by  the 
porter  of  the  Belmont,  on  the  11th,  was  the  same  as  if  plaintiff 
had  made  the  demand,  as  the  porter  was  acting  for  him  and  in  his 
interest.  Therefore  we  may  omit  from  this  case  all  discussion  of 
the  liability  of  the  defendant  below  as  warehouseman  or  bailee  for 
hire.  If  jdaintiff  demanded  his  baggage,  as  testified  to,  and  the 
company,  having  the  trunk  at  its  depot  at  Parsons,  refused  to 
deliver  it,  the  company  is  responsible  to  the  owner  for  its  contents, 
although  the  trunk  was  subsequently  broken  open  and  robbed  with- 
out its  fault.  The  liability  of  the  railroad  company  was  co-exten- 
sive with  its  custody  of  the  trunk,  and  continued  until  it  was  safely 
delivered  into  the  hands  of  its  owner,  if  the  owner  called  for  and 
demanded  the  trunk  within  a  reasonable  time  after  it  reached 
Parsons.  All  of  tins  was  done  by  the  owner.  A.  T.  &  S.  F.  Kid. 
Co.  V.  Brewer,  20  Kas.  C70;  C.  II.  I.  &  Pac.  Rid.  Co.  v.  Conklin, 
32  id.  55;  Tliompson  on  Carriers,  pp.  530-532. 

We  tliink,  therefore,  tliat  there  is  only  one  principal  question  pre- 
sented by  the  record  for  our  determination;    that  is,   whether  the 
tools  of  plaintiff  below  are  proper  baggage  for  a  watchmaker  and 
jeweller.     Tlie  general  rule  is,  that  tlie  implied  obligation  of  a  com- 
mon carrif-r  to  carry  the  baggage  f>f  a  passenger  docs  not  extend 
beyond  ordinary  baggage;  and  it  may  bo  said  generally  that  by  bag- 
I  gage  we  are  to  understand  such  articles  of  personal  convenience  or 
i  necessity  as  are  usually  carried  by  passengers  for  tlieir  personal  use, 
land    not  mercliandise  or  otlier  valuables,  altliougli   carried    in   tlio 
[trunks  of  jassf-ngfrs,  which  an;  not,  liowever,  designed  for  any  such 
use,  but  for  otlit-r  purposes,  sucli  as  a  sale  and  the  like.     Story  on 


WHO   ARE   COMMON   CARKIERS.  49 

Bailments,  499;  Hutchinson  on  Carriers,  §  679.  The  decisions  on 
the  subject  of  passengers'  baggage  turn  upon  the  question :  What 
articles  may  baggage  consist  of?  This  is  a  mixed  question  of  la-w- 
and fact,  to  be  determined  by  the  jury  under  proper  instructions 
from  the  court.  In  Macro-w  v.  Railway  Co.,  2  L.  R.  6  Q.  B.  612, 
the  question  coming  before  the  court  as  to  what  was  properly 
included  by  the  term  baggage,  the  true  rule  was  said  by  Cockburn, 
C.  J.,  to  be:  — 

"  That  whatever  the  passenger  takes  with  him  for  his  personal 
use  or  convenience,  according  to  the  habits  or  wants  of  the  particu- 
lar class  to  which  he  belongs,  either  with  reference  to  the  immediate 
necessities  or  to  the  ultimate  purpose  of  the  journey,  must  be  con- 
sidered as  personal  luggage.  This  would  include,  not  only  all 
articles  of  apparel,  whether  for  use  or  ornament,  but  also  the  gun 
case  or  fishing  apparatus  of  the  sportsman,  the  easel  of  the  artist  on 
a  sketching  tour,  or  the  books  of  the  student,  and  other  articles  of 
an  analogous  character,  the  use  of  which  is  personal  to  the  traveller, 
and  the  taking  of  which  has  arisen  from  the  fact  of  his  journeying. 
.  .  .  But  merchandise,  or  furniture,  or  household  goods,  would  not 
come  within  the  description  of  ordinary  luggage,  unless  accepted  as 
such  by  the  carrier." 

It  is  also  held  by  the  authorities  that  a  reasonable  quantity  of  his 
tools  is  proper  baggage  for  a  mechanic.  Davis  v.  Railroad  Co.,  10 
How.  Pr.  330;  Porter  v.  Hilderbrand,  14  Pa.  St.  129.  The  case  of 
Davis  V.  Railroad  Co.,  siqjra,  and  Porter  v.  Hilderbrand,  supra,  are 
cited  by  Thompson  in  his  work  on  Carriers,  and  also  by  Hutchinson 
in  his  book  on  the  same  subject;  and  are  also  referred  to  in 
other  text-books  without  criticism  or  other  unfavorable  comment. 
Thompson  on  Carriers,  513;  Hutchinson  on  Carriers,  §  683. 

These  cases  are  quite  similar  to  the  one  at  bar,  excepting  that  the 
tools  in  controversy  are  more  valuable.  In  Davis  v.  Railroad  Co., 
the  contents  of  the  trunk  consisted  of  ordinary  wearing  apparel,  a 
gun,  and  a  set  of  harness-maker's  tools,  worth  ten  dollars.  The 
plaintiff  was  a  harness-maker  by  trade,  and  it  was  proved  that  it  is 
usual  for  those  of  that  trade,  in  going  from  place  to  place,  to  take 
their  tools  with  them  in  their  trunks.  In  Porter  v.  Hilderbrand, 
the  plaintiff  was  a  carpenter,  and  his  trunk  contained  $45  of  cloth- 
ing and  .$55  of  carpenters'  tools.  He  was  moving  from  Pennsylvania 
to  the  State  of  Ohio,  and  he  delivered  his  trunk  to  the  owners  of  a 
stage  to  carry  it  from  Pittsburgh  to  Wooster,  Ohio.  In  that  case, 
the  court  speaking  through  Bell,  J.,  said:  — 

"  Another  question  disclosed  by  the  record  is,  whether  a  recovery 
can  be  had  for  the  value  of  the  carpenters'  tools,  which  the  jury 
have  found  were  a  reasonable  part  of  the  plaintiff's  baggage.  .  .  . 
The  right  to  carry  tools  as  baggage  is  unquestionably  open  to  abuse ; 
but  in  the  language  of  the  court  in  IMcGill  v.  Rowand,  3  Barr.  451, 
the  correction  is  to  be  found  in  the  intelligence  and  integrity  of  the 

4 


50  CARRIERS   OF   GOODS. 

jury  called  to  determine  under  tlie  circumstances  of  each  case.  It 
is,  it  is  said,  a  common  thing  for  journeymen  mechanics  to  carry  in 
their  trunks,  with  clothing,  a  small  and  select  portion  of  their  tools. 
To  this  practice  I  see  no  such  objection  as  ought  to  put  this  kind  of 
property  out  of  the  protection  atforded  to  the  necessaries  a  traveller 
is  compelled  by  legitimate  considerations  to  transport  with  his  per- 
son. Upon  this  score,  the  judgment  rendered  below  is,  I  think, 
unobjectionable." 

The  evidence  shows  that  plaintiff  below  was  a  watchmaker  and 
jeweller;  that  he  went  to  Parsons  to  work  at  watchmaking;  that  the 
tools  in  his  trunk  were  intended  for  repairing  watches  and  were 
necessary  for  his  work;  and  that  they  were  the  tools  usuall}'  carried 
by  a  person  of  his  trade  or  occupation.  The  plaintiff  is  therefore, 
strictly  speaking,  a  mechanic,  and  a  reasonable  quantit}-  of  his  tools 
is  proper  baggage.  The  term  "  baggage ''  was  fairly  defined  to  the 
jury  in  the  instructions  of  the  court,  and  we  do  not  think  any  of  the 
instructions  were  misleading  or  prejudicial,  although  as  a  whole 
they  were  unnecessarily  prolix.  What  was  a  reasonable  quantity  of 
tools  for  plaintiff  below  to  carry,  was  a  question  for  the  jury. 

The  judgment  of  the  District  Court  must  be  affirmed.* 


GREAT  NORTHERN  RAILWAY,    Appellant,    v. 
SHEPHERD. 

8  Exch.  30.     1852. 

Parke,  P>.  In  this  case,  tliere  being  no  special  contract,  the 
defendants  were  bound  to  carry  the  plaintiff  and  his  luggage,  which 
term,  according  to  the  true  modern  doctrine  on  the  subject,  com- 
prises clothing  and  such  articles  as  a  traveller  usually  carries  with 
him  for  his  j)ersonal  convenience;  perhaps  even  a  small  present,  or 
a  book  for  the  journey,  might  be  included  in  the  term;  but  certainly 
not  merchandise  or  materials  bought  for  the  purpose  of  being  mami- 
fa^3tured  and  sold  at  a  profit.     Angell  on  Carriers,  sec.  115;  Story  on 

1  In  the  ca.s«  at  )jar,  we  are  of  opinion  tliat  the  feather-bed  v,-m  not  a  part  of  the 
personal  baggage  of  the  plaintiff,  an<i  tliat  the  il.femlants  are  not  liable  for  it  under 
their  contract.  The  case  finds  that  it  \va.i  not  intended  for  personal  use  during  the 
voyagi;.  It  waa  an  article  of  furniture,  and  it  is  difficult  to  see  how  it  can  any  more 
pro^H-rly  l»o  calh-d  inrsonal  baggage  than  any  other  article  of  liousehold  furniture. 
The  pnttirling  judge  correctly  rul.-l  that,  upon  the  fa.-ts  proved,  this  was  n  question  of 
low,  Morton,  J.,  in  Connolly  v.  Warren,  106  Mass.  146.  Ace  .-  Macrow  v.  Crent 
Wentem  R.  To.,  L.  R.  6  Q.  H.  612.  Cotttra :  Ouiniit  v.  Ilenshaw,  35  Vt.  604,  622. 
Tlin  inanuAcript  Iwoks  of  a  student  may  U'  baggage:  Hopkins  v.  Westcott,  6  Hlatch. 
64:  or  the  "price  book"  of  a  travelling  sulesniaiij  Cleaaon  v.  Transportation  Co., 
32  Wi.H.  85. 


WHO   AKE   COMMON   CARRIERS.  51 

Bailments,  526,  5th  ed.  note.  In  this  case,  nine-tenths  of  the  articles 
were  of  the  latter  description.  Now,  if  the  plaintiff  had  carried 
these  articles  exposed,  or  had  packed  them  in  the  shape  of  mer- 
chandise, so  that  the  company  might  have  known  what  they  were, 
and  they  had  chosen  to  treat  them  as  personal  luggage,  and  carry 
them  without  demanding  any  extra  remuneration,  they  would  have 
been  responsible  for  the  loss.  So  also  upon  any  limit  in  point  of 
weight  if  the  company  chose  to  allow  a  passenger  to  carry  more , 
they  would  be  liable.  The  judge  states,  that  there  was  no  evidence 
as  to  whether  defendants  carried  passengers  by  this  excursion  train 
upon  the  terms  contained  in  the  6th  section  of  the  7  &  8  Vict.  c.  85, 
unless  the  court  shall  be  of  opinion  that  the  fact  that  the  charge  for 
each  passenger  was  less  than  a  penny  a  mile  was  of  itself  sufficient 
proof  that  they  carried  upon  those  terms.  That,  however,  it  is  not 
necessary  to  decide;  because,  assuming  that  they  did  not  carry  on 
those  terms,  the  defendants  only  agreed  for  the  stipulated  fare  to 
carry  passengers  and  everything  which  constituted  personal  luggage, 
and  were  not  bound  to  carry  merchandise  or  articles  wholly  uncon- 
nected with  luggage.  If,  indeed,  they  had  notice,  or  might  have 
suspected  from  the  mode  in  which  the  parcels  were  packed  that 
they  did  not  contain  personal  luggage,  then  they  ought  to  have 
objected  to  carry  them ;  but  the  case  finds  that  they  had  no  notice 
of  what  the  packages  contained.  Whether  this  was  done  for  any 
fraudulent  purpose,  it  is  not  necessary  to  inquire ;  because,  even  if 
there  was  no  fraudulent  intent,  the  plaintiff  has  so  conducted  him- 
self that  the  company  were  not  aware  that  he  was  not  carrying  lug- 
gage, and  therefore  the  loss  must  be  borne  by  him.  It  was  con- 
tended that,  after  the  accident  happened,  a  new  special  contract  was 
entered  into,  by  which  the  company  undertook  to  take  care  of  the 
plaintiff's  luggage.  But  this  argument  fails.  If,  indeed,  an  acci- 
dent had  happened  to  a  perfect  stranger,  and  the  company  had 
agreed  without  compensation  to  forward  his  luggage,  they  would, 
according  to  Coggs  v.  Bernard,  be  responsible  for  its  loss.  But  in 
this  case  the  plaintiff  was  a  passenger,  and  the  intention  of  the  com- 
pany  was  only  to  carry  into  effect  the  original  contract;  and  from 
that  alone  their  obligation  arises.  I  am  therefore  of  opinion  that 
the  company  are  not  liable;  and  the  judgment  of  the  court  below 
must  be  reversed. 


02  CARRIERS   OF   GOODS. 

MICHIGAN   CEXTEAL  K.  CO.  v.   C ARROW. 
73  111.  318.     Ib74. 

Scott,  J.  .  .  .  By  common  custom  the  personal  luggage  of  the 
traveller  is  carried  without  extra  charge.  Passenger  carriers  do  not 
assume  to  carry  anything  as  baggage  except  such  things  as  may  be 
necessary  to  the  convenience  and  comfort  of  the  traveller,  and  per- 
haps sufficient  money  to  defray  the  expenses  of  the  journey.  This 
fact  is  well  known  to  all  persons  who  seek  passage  in  railway  car- 
riages. With  a  great  majority  of  travellers  the  amount  of  baggage 
carried  is  of  no  considerable  value.  The  companies  have  no 
arrangements  for  the  carrying  and  safe  keeping  of  costly  articles. 
The  contract  is  simply  for  passage  and  the  usual  personal  baggage 
not  exceeding  in  weight  the  amount  prescribed  by  the  regulations 
of  the  company. 

If  this  implied  contract  with  the  carrier  of  passengers  is  to  be 
varied,  modified,  or  enlarged,  it  must  be  by  direct  notice  of  the 
contents  of  the  package  offered  as  baggage  whicli,  in  effect,  would 
amount  to  a  special  contract.  The  company  may  rely  upon  the 
representation  that  whatever  is  offered  as  baggage  is  that,  and  noth- 
ing else.  The  law  seems  to  be  settled  that  it  need  not  inquire  as  to 
its  contents.  If  the  passenger  has  merchandise  checked  as  baggage 
without  such  notice,  the  company  cannot  be  held  liable  as  a  com- 
mon carrier.  Cahill  v.  L.  &  N.  W.  Ry.  Co.,  10  C.  B.  n.  s.  154; 
Chicago  &  Cincinnati  Air  Line  R.  R.  Co.  v.  Marcus,  supra;  Collins 
V.  Boston  &  Maine  R.  R.  Co.,  10  Cush.  aOO;  Great  Northern  Rail- 
road Co.  V.  Shepherd,  8  W.  H.  &  G.  30  [50] ;  Batson  u.  Donovan, 
4  B.  &  A.  21. 

Upon  the  doctrine  of  these  cases,  it  is  very  clear  api)ellant  was 
not  a  common  carrier  of  the  goods  destroyed.  Appellee  gave  the 
agents  of  tin;  company  no  notice  whatever  liis  trunk  contained  valu- 
able merchandise.  No  one  knew  better  than  api^'llee  the  company 
did  not  carry  merchandise  as  baggage,  free  of  charge,  and  without 
notice  of  the  contents  of  the  trunk  there  is  neither  reason  nor 
authority  for  holding  the  company  liable  as  an  insurer  against  loss. 
In  Cahill  v.  L.  &  N.  W.  liy.  Co.,  suj,rn,  Willis,  J.,  very  aptly  re- 
marks that  "where  a  passenger  takes  a  ticket  at  tlie  ordinary  charge, 
he  must,  according  to  common  sense  and  common  experience,  be 
taken  to  contract  with  the  railway  company  for  tlie  carriage  of  liim- 
self  and  his  personal  luggage  only,  and  that  he  can  no  more  extend 
tin-  contract  to  tlic  conveyance  of  a  single  package  of  mercliandise 
than  of  his  entire  worldly  possessions."  So  we  say  in  tliis  case,  it 
was  not  in  the  power  of  appellee  to  extend  the  liability  of  the  com- 
I»any  on  account  of  his  own  convenience.     There  was  no  undertak- 


WHO   AKE   COMMON   CARRIERS.  53 

ing  to  carry  mercliandise,  and  he  had  no  right  to  impose  his  goods 
subtilely  upon  the  company,  and  then  seek  to  make  the  obligation 
that  of  a  common  carrier.  If  he  desired  to  have  his  merchandise  or 
wares  go  upon  the  train  with  him,  it  was  but  just  to  the  carrier  he 
should  disclose  its  nature  and  value,  and  if  the  company  then  chose 
to  treat  it  as  baggage,  the  liability  of  a  common  carrier  would  attach, 
but  not  otherwise. 

The  case  of  the  Great  Northern  Kailway  Co.  v.  Shepherd,  supra, 
is  a  case  where  the  passenger  had  a  quantity  of  ivory  handles  in  his 
baggage.  No  notice  was  given ,  and  it  was  not  so  packed  as  to  indi- 
cate to  the  carrier  it  contained  merchandise.  It  was  decided  the 
carrier  of  passengers  for  hire  is,  at  common  law,  only  bound  to  carry 
their  personal  luggage.  Therefore,  if  a  passenger  has  merchandise 
among  his  luggage,  or  so  packed  the  carrier  has  no  notice  it  is  mer- 
chandisBj  he.  is  not  responsible  for  its  loss.  _ 

The  case  of  Cahill  v.  L.  &_  N._ W^-^Y.  Co. ,  supra,  in  some  of  its 
features  is  like  tEe  case  at  bar.  The  plaintiff  was  a  commercial 
traveller.  He  had  checked,  as  baggage,  a  box  covered  with  a  black 
leather  case,  which  had  painted  across  the  top,  on  each  end,  the  word 
"  Glass  "  in  large  white  letters,  and  also  the  name  of  his  employer 
in  like  legible  letters.  It  contained  valuable  merchandise.  No 
information  was  given  by  the  plaintiff  to  the  company's  servants, 
nor  was  any  inquiry  made  by  them  as  to  the  contents  of  the  box. 
It  was  held,  in  an  action  against  the  company  for  the  loss  of  the 
box,  that,  inasmuch  as  it  contained  merchandise  only  and  no  per- 
sonal luggage ,  there  was  no  contract  to  carry  it,  and  consequently  it 
was  not  liable  for  the  loss. 

The  case  was  reargued  in  the  Exchequer  Chamber,  before  a  full 
bench.  13  J.  Scott,  818.  Cockburn,  C.  J.,  agreed  with  the  judges 
of  the  Court  of  Common  Pleas,  if  the  company  chose  to  take  as 
ordinary  baggage  that  which  it  knew  to  be  merchandise,  it  is  not 
competent,  in  the  event  of  loss,  to  claim  exemption  from  liability 
on  the  ground  the  article  consists  of  merchandise.  "But,"  he  adds, 
"on  the  contrary,  if  a  passenger  who  knows  or  ought  to  know  that  he 
is  only  entitled  to  have  his  ordinary  personal  luggage  carried  free  of 
charge,  choose  to  carry  with  him  merchandise  for  which  the  com- 
pany is  entitled  to  charge,  he  cannot  claim  to  be  compensated  in 
respect  to  any  loss  or  injury,  by  the  company  to  whom  he  has 
abstained  from  giving  notice  of  the  contents." 

The  fact  the  box  was  marked  "  Glass  "  was  not  a  circumstance,  in 
the  opinion  of  the  court,  that  would  charge  the  company  with  notice 
it  contained  merchandise.  It  could  regard  it  as  an  indication  it  was 
to  be  handled  with  more  than  ordinary  care.  This  case  is  a  much 
stronger  one  than  the  present  plaintiff's  case.  There  was  very  much 
more  to  put  the  company  on  inquiry.  It  was  ruled,  however,  it 
was  not  the  duty  of  the  company  to  inquire  as  to  the  contents  of 
the   luggage,  but   it  was  the  duty  of  the  plaintiff  himself  to  give 


54  CARRIERS   OF   GOODS. 

notice,  and  his  failure  to  do  so  was  sufficient  to  bar  a  recovery.  To 
the  same  effect  is  the  case  of  The  ?.elfast  &  Ballymena  K.  E.  Co.  v. 
Keys,  9  House  of  Lords  Cases,  550.  The  case  of  Dunlap  v.  The 
International  Steamboat  Co.,  98  Mass.  371,  is  in  entire  conformity 
with  the  views  expressed  in  the  English  cases.  .  .  .^ 


HANNIBAL   KAILKOAD  r.    SWIFT. 

12  Wall.  (U.  S.)  2G2.     1870. 

PiELD,  J.  ...  A  considerable  portion  of  the  property,  it  is  true, 
was  not  personal  baggage,  which  the  company  was  obliged  to  trans- 
port under  the  contract  to  carry  the  person ;  nor  does  it  appear  that 
it  was  offered  to  the  company  as  such.  It  embraced  buffalo  robes, 
hair  mattresses,  pillows,  writing-desks,  tables,  statuary,  and  pic- 
tures, in  relation  to  which  there  could  be  no  concealment,  and  it  is 
not  pretended  that  any  was  attempted.  Where  a  railroad  company 
receives  for  transportation,  in  cars  which  accompany  its  passenger 
trains,  property  of  this  character,  in  relation  to  which  no  fraud  or 
concealment  is  practised  or  attempted  upon  its  employees,  it  must 
be  considered  to  assume,  with  reference  to  it,  the  liability  of  com- 
mon carriers  of  merchandise.  It  may  refuse  to  receive  on  the  pas- 
senger train  property  other  than  the  baggage  of  the  passenger,  for  a 
contract  to  carry  the  person  only  implies  an  undertaking  to  transport 
such  a  limited  quantity  of  articles  as  are  ordinarily  taken  by  travel- 
lers for  their  personal  use  and  convenience;  such  quantity  depend- 
ing, of  course,  upon  the  station  of  the  party,  the  object  and  length 
of  the  journey,  and  many  other  considerations.  But  if  property 
offered  with  the  passenger  is  not  represented  to  be  baggage,  and  it 
is  not  so  packed  as  to  assume  that  appearance,  and  it  is  received  for 
transportation  on  the  passenger  train,  there  is  no  reason  why  the 
carrier  shall  not  be  held  equally  responsible  for  its  safe  conveyance 
as  if  it  were  placed  on  the  freight  train,  as  undoubtedly  he  can  make 
the  same  charge  for  its  carriage.* 

1  ylcc:  Humphreys  v.  IVrrj-,  148  U.  S.  627. 

2  Hut  in  iJlumantle  r.  FitchburK  K.  Co..  127  Mass.  322,  a  package  wa.s  receive. 
apiK-aring  to  U-  m.-rcban.lise,  and  the  court  s.iy:  In  tl.e  case  at  Ur,  the  pla.ntiir  olTerea 
an.l  .lelivered  the  bundles  as  bis  j.crsoiuil  baRKap'.  and  rcjuested  that  they  nuKlit  bo 
checked  M  such ;  and  the  baRKaj-c-master  gave  him  checks  for  them  nccordu.Kl.v.  a«  be 
W.-W  U^un.i  to  do  f.>r  personal  baK'sage  of  i«issenKers.  by  the  .St.  of  1871.  c  .3/2,  §  136. 
Th.-rc  was  no  evidence  that  either  the  idnintilTor  the  b.iKTaK'<-""»«tcr  agreed  or  intended 
that  thev  should  l>c  carried  as  freight,  or  that  the  baKguge-innster  had  any  authority  to 
receive  f'r.-ight  on  a  paH»4-nger  train,  or  to  bind  the  .-..rp-Tation  to  carry  nierchan.l.s..  ,13 
I«r»onal  Uggagc.     The  cauc  cannot  be  distinguished  in  principle  from  the  previous  do- 


WHO   AKE   COMMON   CARRIERS.  55 

HENDERSON  v.   LOUISVILLE,  etc.  R.  CO. 
123  U.  S.  61.     1887. 

This  was  an  action  against  a  railroad  company.  Judgment  for 
defendant.     Plaintiff  sued  out  this  writ  of  error. 

Justice  Gray.  This  was  an  action  against  a  railroad  corporation 
by  a  passenger  to  recover  for  the  loss  of  a  handbag  and  its  contents. 

The  plaintiff,  a  married  woman,  suing  by  authority  of  her  hus- 
band, alleged  in  the  original  petition  that  on  October  25,  1883,  the 
defendant,  being  a  common  carrier  of  goods  and  persons  for  hire, 
received  her  into  one  of  its  cars  as  a  passenger  from  her  summer 
residence  at  Pass  Christian,  in  the  State  of  Mississippi,  to  her  winter 
residence  in  New  Orleans,  having  in  her  hand,  and  in  her  immediate 
custody,  possession,  and  control,  a  leather  bag  of  a  kind  usually  car- 
ried.  by  women  of  her  condition  and  station  in  society,  containing 
^iSSOJLin  bank  bills,  and  jewelry  worth  $4075 ;  that  while  the  plain- 
tiff, holding  the  bag  in  her  hand,  was  attempting  to  close  an  open 
w2ndow_next  her  seat,  through  which  the  cold  wind  was  blowing 
upo.n  her,  the  bag  and  its  contents,  by  some  cause  unknown  to  her, 
accidentally  fell  from  her  hand  through  the  open  window  upon  the 
railroad;  that  she  immediately  told  the  conductor  of  the  train  that 
the  bag  contained  property  of  hers  of  great  value,  and  requested  him 
to_stop  the  train,  and  to  allow  her  to  leave  the  car  and  retake  the 
bag  and  its  contentsj  but  he  refused  to  do  so,  although  nothing  hin- 
dered or  prevented  him,  and,  against  her  protestations,  caused  the 
train  to  proceed  at  great  speed  for  three  miles  to  Bay  St.  Louis, 
where  he  stopped  the  train,  and  she  despatched  a  trusty  person  to 
the  place  where  the  bagjhad  fallen ;  but  before  he  arrived  there,  the 
bag,  with  its  contents,  was  stolen  and  carried  away  by  some  person 
or  persons  to  the  plaintiff  unknown,  "  and  was  wholly  lost  to  the 
plaintiff  by  the  gross  negligence  of  the  defendant  as  aforesaid." 

The  mere  statement  of  the  case  is  sufficient  to  demonstrate  the 
correctness  of  the  judgment  below. 

The  facts  alleged  in  the  original  petition  constitute  no  breach  or 
neglect  of  duty  on  the  part  of  the  defendant  towards  the  plaintiff. 
She  did  not  intrust  her  bag  to  the  exclusive  custody  and  care  of  the 
defendant's  servants,  but  kept  it  in  her  own  immediate  possession, 

cisions  of  this  court,  already  cited.     Evidence  tending  to  show  that  the  baggage-master  / 
knew  or  supposed  the  bundles  to  contain  merchandise,  or  that  other  passengers  had  1 
similar  bundles,  would  not  warrant  the  jury  in  finding  that  the  defendant  agreed  to  { 
transport  the  plaintiffs  merchandise,  or  became  liable  therefor  as  a  common  carrier. 
The  instructions  under  which  the  case  was  submitted  to   the  jury  were  therefore 
erroneous. 


56  CAKllIERS    OF    GOODS. 

without  informing  the  defendant  of  the  value  of  its  contents,  until 
after  it  had  dropped  from  her  hand  through  the  open  window.  Even 
if  no  negligence  is  to  be  imputed  to  her  in  attempting  to  shut  the 
window  with  the  bag  in  her  hand,  yet  her  dropping  the  bag  was  not 
the  act  of  the  defendants  or  its  servants,  nor  anything  that  they 
were  bound  to  foresee  or  guard  against;  and  after  it  had  happened 
she  had  no  legal  right,  for  the  purpose  of  relieving  her  from  the 
consequences  of  an  accident  for  which  they  were  not  responsible,  to 
require  them  to  stop  the  train,  short  of  a  usual  station,  to  the  delay 
and  inconvenience  of  other  passengers,  and  the  possible  risk  of  col- 
lision with  other  trains. 

Judgment  affirmed. 


FIRST   NATIONAL  BANK  v.    jNIARIETTA,    etc.  R.  CO. 
20  Ohio  St.  259.     1^70. 

Scott,  J 

Upon    well-settled   principles   the    defendant   became   bound,    in 
consideration    of    the    fare  paid    by  ]\IcElroy,   to   use    the    highest 
degree   of  diligence   and  care  in  transporting  him  to  his  place  of 
destination.      And    this   contract  for  the   carriage   of    his   person 
necessarily  included  the  wearing  apparel  which  accompanied    his 
person,  such    reasonable    sum  of   money  as  might  be  in  good  faith 
carried  with  him  for  the  expenses  of  the  journey,  together  with  all 
such  articles,   to  a  reasonable   extent,  at  least,   as  are  ordinarily 
carried  or  worn  upon  the  person  for  purposes  of  personal  use,  con- 
venience, or  ornament;  and  we  agree  with  counsel  for  plaintiff  that 
the  contract  also  included  the  carriage  of  "his  baggage  delivered  to 
the  defendant  as  such  to  be  carried,  to  the  extent  of  an  ordinary  and 
reasonable  wardrobe  for  one  in  his  station  in  life,  together  with  such 
articles  as  are  usually  found  in  the  parajjhernalia  of  a  traveller." 
j      But  the  notes  for  the   loss  of  which   this  a('ti(m   is  brought  can 
'neither  be  regarded  as  a  part  of  the  ])assenger's   l)aggage,  nor  as 
I  money  intended  to  defray  the  expenses  of  the  journey.   The  statements 
jof  the  petition  show  that  the  notes  were  simply  being  transmitted, 
1  for  business  purjjoses,  from  Greenfield  to  Cincinnati,  and  were  not 
'  intended  to  be  used  by  the  ])asseiigor  for  defraying  the  oxi)cnse8  of 
hi.s  journey  or  otherwise.     The  trip  may  have  been  undertaken  on 
account  of  the  money,  but  the  money  was  not  carried  on  account  of 
the  trip.     Nor  was  the  defendant  intrusted  with  the  custody  of  these 
notes,  or  specially  charged  with  any  care  or  oversight  in  respect  to 
them.      They   remained    in   the   exclusive   custody   and   control    of 
McElroy.     And  as  they  were  clearly  not  included  in  the  contract 
for  the  tran8portati(ju  of  the  passenger  and  his  baggage,  and  were 


WHO   ARE   COMMON   CARRIERS.  57 

not  subjected  to  the  custody  of  the  carrier,  it  is  difficult  to  see  how 
he  can  be  held  liable  for  a  want  of  care  over  them. 

We  do  not  call  in  question  the  right  of  a  passenger  to  carry  about 
his  person,  for  the  mere  purpose  of  transportation,  large  sums  of 
money,  or  small  parcels  of  great  value,  without  communicating  the 
fact  to  the  carrier,  or  paying  anything  for  their  transportation.  But 
he  can  only  do  so  at  his  own  risk,  in  so  far  as  the  acts  of  third  i)er- 
sons,  or  even  ordinary  negligence  on  the  part  of  the  carrier  or  his 
servants  is  concerned.  For  this  secret  method  of  transportation 
would  be  fraud  upon  the  carrier,  if  he  could  thereby  be  subjected  to 
an  unlimited  liability  for  the  value  of  parcels  never  delivered  to 
him  for  transportation,  and  of  which  he  has  no  knowledge,  and  has 
therefore  no  opportunity  to  demand  compensation  for  the  risk 
incurred.  No  one  could  reasonably  suppose  that  a  liability  which 
might  extend  indefinitely  in  amount  would  be  gratuitously  assmued, 
even  though  the  danger  to  be  apprehended  should  arise  from  the 
inadvertent  negligence  of  the  carrier  himself.^ 


LEWIS  V.   NEW  YORK   SLEEPING  CAR  CO. 

143  Mass.  267.    1887. 

Two  actions,  each  with  a  count  jn  contract  and  aj30untJjQ.tDrt,_to 
recover  for  the  loss^of  the  plaintiff 's.  property  alleged  Jojiaye  been 
stolen  while  the  plaintiff  was  riding  as  a  passenger  in  the  defendants' 
car,  through  the  negligence  of  the  defendant's  servant.  .  .  . 

The  jury  returned  a  verdict  for  the  plaintiff  in  each  case ;  and  the 
defendant  alleged  exceptions. 

MoRTOx,  C.  J.  The  use  of  sleeping-cars  upon  railroads  is  modern, 
and  there  are  few  adjudicated  cases  as  to  the  extent  of  the  duties 
and  liabilities  of  the  owners  of  such  cars.  They  must  be  ascertained 
by  applying  to  the  new  condition  of  things  the  comprehensive  and 
elastic  principles  of  the  common  law.  When  a  person  buys  the  right 
to  the  use  of  a  berth  in  a  sleeping-car,  it  is  entirely  clear  that  the 
ticket  which  he  receives  is  not  intended  to,  and  does  not,  express  all 
the  terms  of  the  contract  into  which  he  enters.  Such  ticket,  like 
the  ordinary  railroad  ticket,  is  little  more  than  a  symbol  intended  to 
show  to  the  agents  in  charge  of  the  car  that  the  possessor  has  entered 
into  a  contract  with  the  company  owning  the  car,  by  which  he  is 
entitled  to  passage  in  tlie  car  named  on  the  ticket. 

Ordinarily,  the  only  communication  between  the  parties  is  that 
the  passenger  buys,  and  the  agent  of  the  car  company  sells,  a  ticket 

1  Ace.  :  Weeks  v.  N.  Y.,  N.  H.,  &  H.  R.  R.  Co.,  72  N.  Y.  50. 


58  CARRIERS   OF   GOODS. 

between  two  points;  but  the  contract  thereby  entered  into  is  implied 
from  the  nature  and  usages  of  tlie  employment  of  the  company. 

A  sleeping-car  company  holds  itself  out  to  the  world  as  furnishing 
safe  and  comfortable  carSj  and,  when  it  sells  a  ticket,  it  impliedly 
stipulates  to  do  sq^.  It  invites  passengers  to  pay  for,  and  make  use 
of,  the  cars  for  sleeping,  all  parties  knowing  that,  during  tlie  greater 
part  of  the  night,  the  passenger  will  be  asleep,  powerless  to  protect 
himself  or  to  guard  his  property.  He  cannot,  like  the  guest  of  an 
inn,  by  locking  the  door,  guard  against  danger.  He  has  no  right  to 
take  any  such  steps  to  protect  himself  in  a  sleeping-car,  but,  by  the 
necessity  of  the  case,  is  dependent  upon  the  owners  and  officers  of 
the  car  to  guard  him  and  the  property  he  has  with  him  from  danger 
from  thieye^s  or  otherwise. 

The  law  raises  thejlutj  on  the  part  of  the  car  _compauy  to  afford 
him  this  protection.  While  it_is,  not  liable  as  a  common^  carrier  or 
as  an  innholder,  yet  it  is  its  duty  to  use, reasonable  car§_to_guard  the 
passengers  from  theft,  and  if,  through  want  of  sucli  care^  the  per- 
sonal effects  of  a  passenger  such  as  he  might  reasonably  carry  with 
Eira  are  stolen,  the  compiany  is  liable  for  it._^  Such  a  rule  is  required 
by  public  policy,  and  by  the  true  interests  .of  both  the  passenger 
and  the  company ;  and  the  decided  weight  of  authority  supports  it. 
Woodruff  Sleeping  &  Parlor  Coach  Co.  v.  Diehl,  84  Ind.  474; 
Pullman  Car  Co.  v.  Gardner,  3  Penny.  78;  Pullman  Palace  Car  Co. 
V.  Gaylord,  23  Am.  Law  Reg.  x.  s.  788. 

The  notice  by  which  the  defendant  company  sought  to  avoid  its 
liability  was  not  known  to  the  plaintiff,  and  cannot  avail  the 
defendant. 

The  defendant  contends  that  there  was  no  evidence  of  negligence 
on  its  part.  The  fact  that  two  larcenies  were  committed  in  the 
manner  described  in  the  testimony  is  itself  some  evidence  of  the 
want  of  proper  watchfulness  by  the  porter  of  the  car;  add  to  this 
the  testimony  that  the  porter  was  found  asleep  in  the  early  morn- 
ing, that  he  was  required  to  be  on  duty  for  thirty-six  hours  con- 
tinuously, wliich  included  two  nights,  and  a  case  is  presented  which 
must  be  submitted  to  the  jury. 

We  have  considered  all  the  questions  which  luive  been  argued  in 

the  two  cases  before  us,  and  are  of  opinion  tliat  the  rulings  at  tlie 

trial  were  correct. 

Exceptions  overruled.^ 

»  Cmlra :  Pullman  P.  C.  Co.  i-.  Lowe,  28  Nebr.  239. 


WHO   AEE   COMMON   CARRIERS.  59 

CLAEK  V.   BURNS. 
118  Mass.  275.     1875. 

Contract, for  the  value  of  a  watcV against  the  owners  of. a_steam; 
ship  as  common  carriers,  with  counts  in  tort  for  negligence,  and  also 
counts  charging  them  as  innkeepers.  The  case  was  submitted  to  the 
Superior  Court  on  an  agreed  statement  of  facts  in  substance  as 
follows :  — 

The  defendants  are  the  owners  of  the  Cunard  line  of  steamers,  so 
called,  which  run  between  Boston  aiid  Liverpool,  and  New  York  and 
Liverpool,  and  are  common  carriers  of  passengers  and  freight  between 
those  places.  On  November  28,  1871,  the  plaintiff  left  Liverpool  on 
board  the  steamship  "Calabria,"  one  of  the  Cunard  line,  for  New 
York,  as  a  first-class  passenger.  The  plaintiff  paid  for  his  ticket, 
by  Avhich  he  became  entitled  to  the  usual  accommodation  on  board 
the  ship  for  sleeping  and  lodging,  and  to  be  supplied  with  proper 
food.  He  took  with  him  and  wore  on  his  person  in  the  daytime  the 
watch  referred  to  in  the  declaration.  He  occupied  a  state-room  with 
two  berths,  one  of  which  was  occupied  by  another  passenger,  placed 
there  by  the  defendants ,  and  it  is  admitted  that  the  watch  was  not 
taken  by  him.  The  state-room  had  a  lock,  but  no  key  or  other 
fastening.  When  the  plaintiff  went  to  bed  on  Sunday  evening, 
December  3,  at  nine  o'clock,  he  put  his  watch  in  the  pocket  made 
for  it  in  his  waistcoat,  which  he  hung  by  the  arm-holes  on  a  hook  in 
his  state-room,  intended  for  clothes  to  be  hung  on.  He  did  not 
fasten  his  state-room  door,  having  no  means  to  do  so.  The  lamp  in 
the  state-room  was  so  placed  that  the  steward  had  to  come  into  the 
state-room  and  go  to  the  farther  end  thereof  to  light  it  and  to  put 
the  light  out,  and  was  in  the  habit  of  doing  so  at  the  time  appointed, 
by  the  rules  and  regulations  of  the  ship,  for  lighting  the  lamps  and 
putting  out  the  lights.  Passengers  are  not  allowed  to  light  or  put 
out  the  lamps.  The  lamps  are  put  out  at  ten  o'clock,  p.m.  When 
the  plaintiff  first  arose  to  dress  himself  at  the  usual  hour  on  Monday 
morning,  his  watch  was  missing.  He  notified  the  captain  imme- 
diately of  his  loss,  and  the  purser  made  a  thorough  search  of  the 
state-room,  and  then  a  careful  examination  of  the  plaintiff's  trunk 
and  the  trunk  of  the  gentleman  who  occupied  the  other  berth  in  the 
state-room,  but  without  success. 

The  plaintiff  had  the  usual  accommodations  given  to  first-class 
passengers  on  board  the  defendants'  steamers,  and  it  is  the  usual 
custom  of  the  defendants  not  to  permit  the  locking  of  state-room 
doors,  nor  to  permit  passengers  to  control  the  lamps  in  their  state- 
rooms or  the  windows  thereof,  but  to  give  the  stewards  access  at  all 
times  to  the  state-rooms  in  order  that  passengers  may  not,  by  the 


60  CAKKIERS    OF    GOODS. 

use  of  matches,  or  by  imprudently  opening  their  wimlows,  incur  the 
risk  to  themselves,  their  fellow-passengers,  and  the  ship  and  cargo, 
of  fire,  and  of  the  entrance  of  water  through  the  windows,  and  also 
that  they  may  be  accessible  in  case  of  accident  or  danger,  or  of  their 
own  helplessness  from  sickness  or  other  causes.  ^jC 

When  the  plaintiff  reached  Boston  he  called  on  the  defendants' 
agent,  Mr,  Alexander,  of  whom  he  purchased  his  ticket,  and  re- 
quested of  him  payment  for  the  loss  sustained  by  him,  and  at  the 
same  time  complained  that  the  state-rooms  were  not  allowed  to  be 
locked,  to  which  Alexander  replied,  giving  as  a  reason  for  the  rule, 
that  the  state-rooms  must  be  accessible  for  the  safety  of  the  ship, 
cargo,  and  passengers.  The  plaintiff  had  crossed  the  ocean  three 
times  before  in  boats  of  the  Cunard  line  and  had  never  had  a  key  or 
fastening  to  his  state-room,  and  understood  that  it  was  against  the 
rule  or  custom  of  these  ships.  The  watch  was  worth  one  hundred 
and  twenty-five  dollars.     The  pleadings  may  be  referred  to. 

If  upon  the  foregoing  facts  the  plaintiff"  was  entitled  to  recover, 
judgment  was  to  be  rendered  for  ^125,  and  interest  from  date  of  the 
writ,  with  costs;  otherwise  judgment  for  the  defendants,  with  costs. 

Upon  the  facts  agreed,  Brigham,  C,  J,j  ruled  that  the  plaintiff 
could  not  maintain  this  action,  and  ordered  judgment  for  the 
defendants;  and  the  plaintiff  alleged  exceptions. 

Gkay,  C.  J,  The  liabilities  of  common  carriers  and  innkeepers, 
though  similar,  are  distinct.  No  one  is  subject  to  both  liabilities  at 
the  same  time,  and  with  regard  to  the  same  i)roperty,  Tlie  liability 
of  an  innkeeper  extends  only  to  goods  put  in  his  charge  as  kee])er  of 
a  public-house,  and  does  not  attach  to  a  carrier  who  has  no  house  and 
IS  engaged  only  in  the  business  of  transportation.  The  defendants, 
as  owners  of  steamboats  carrying  passengers  and  goods  for  hire,  were 
not  innkeepers.  They  would  be  subject  to  the  lial»ility  of  common 
',  carriers  for  the  baggage  of  passengers  in  their  custodj',  and  might 
^  perhaps  be  so  liable  for  a  watch  of  the  passenger  locked  up  in  his 
^  trunk  with  otlier  baggage.  But  a  watch,  worn  by  a  passenger  on 
his  person  by  day,  and  kept  by  him  within  reach  for  use  at  nigTit, 
whether  retained  ujton  his  person,  or  placed  under  his  pillow,  or  in 
a  pocket  of  his  clothing  hanging  near  him,  is  not  so  intrusted  to 
their  custody  and  control  as  to  make  them  liable  for  it  as  common 
carriers.  Steamboat  Crystal  Palace?'.  Vanderjjool,  10  B.  Mon.  TTTH'; 
Tower  v.  Utica  Kailrf)ad,  7  Hill,  47;  Abbott  r.  Bradstreet,  r>5  Elaine, 
530;  I'ullman  I'alace  Car  Co.  v.  Smith,  7  Chicago  Legal  News,  TM. 

Whether  the  defendants'  regulations  as  to  keeping  the  doors  of 
tho  state-rooms  unlocked,  the  want  of  i)recautions  against  theft,  and 
the  other  facts  agreed,  were  sufficient  to  show  negligence  on  the  part 
of  the  defendants,  was,  taking  the  most  favorable  view  for  the 
]daintiff,  a  question  of  fact,  upon  which  the  decision  of  the  court 
below  was  conclusive.     Fox  v.  Adams  Express  Co.,  IIG  Ma.ss.  292. 

F.Tcrjif ions  ovrrruhd. 


DELIVERY   TO   CARRIER.  61 


2.    DELIVERY  TO  CARRIER. 

GROSVENOR,    Respondent,    v.   NEW  YORK    CENT.    R.    CO., 

Appellant. 

39  N.  Y.  34.     1868. 

The  complaint  in  this  action  alleges  that,  in  April,  1861,  the 
plaintiff  delivered  to  the  defendant,  at  Clifton  Springs,  a  cutter,  to 
be  carried  by  it  to  Buffalo,  and  paid  the  defendant  therefor,  which 
the  defendant  agreed  to  do,  and  that  by  the  negligence  of  the 
defendant,  it  became  wholly  lost  to  the  plaintiff.  The  answer  denies 
these  allegations.  The.  issue  was  tried  in  the  Superior  Court  of 
Buffalo,  before  Justice  Clinton  and  a  jury,  when  the  following  facts 
were  proved :  That  the  plaintiff  called  upon  the  defendant's  depot 
agent  at  Clifton,  and  paid  him  the  freight  on  the  cutter,  and  the 
fare  of  his  servant  to  Buffalo,  and  told  him  that  he  would  send  them 
down  in  the  morning,  to  go  by  the  afternoon  train.  The  servant 
brought  the  cutter,  by  plaintiff's  direction,  to  have  it  shipped  to 
Buffalo,  and  arrived  at  the  depot  about  six  o'clock  in  the  morning, 
"and  placed  it  on  the  platform  of  the  freight-house,  next  the  railroad 
track,  with  one  end  next  the  freight-house,  and  the  other  toward  the 
track,  and  went  back  after  the  thills ;  that  he  returned  in  about  an 
hour  with  them  and  stopped  in  front  of  the  passenger  depot,  about 
six  rods  from  the  freight-house,  and  saw  the  defendant's  baggage- 
man, Hall,  who,  at  the  time,  was  sweeping  out  the  depot,  and  said 
"to  him,  there  is  some  stuff  to  go  to  Buffalo.  He  asked  on  what 
train,  to  which  he  replied,  the  one  o'clock,  and  then  took  the 
thills  and  laid  them  with  the  cutter.  He  had  not  then  seen  the 
baggage-man  do  anything  with  the  freight,  and  did  not  ask  for  or 
take  any  receipt  for  the  property;  that  one,  Sutherland,  was  the 
defendant's  agent  there,  and  had  been  such  agent  for  three  years, 
and  was  alone  authorized  to  receive  and  deliver  freight,  and  resided 
in  the  depot.  The  defendant  proved  Hall  was  baggage-man,  and 
had  never  received  freight  or  given  receipts  therefor,  except  by  his 
especial  directions,  and  had  no  general  orders  on  that  subject.  That 
'freight  is  always  received  and  delivered  at  the  east  end  of  the  freight- 
house.  That  there  is  a  platform  alongside  of  the  freight-house, 
next  the  track,  and  comes  within  a  few  inches  of  a  freight-car 
on  the  track,  which  is  used  for  receiving  and  delivering  freight 
from  and  to  the  cars,  when  it  is  taken  into  or  from  the  freight-house 
and  weighed;  and  that  it  is  received  from  and  delivered  at  the  east 
end  of  the  depot.  That  the  cutter  when  on  the  platform,  where  it 
was  left  by  plaintiff's  servant,  could  not  be  seen  from  the  passenger 
depot.     That  the  cutter,  placed  on  the  platform,  as  stated,  would 


62  CARRIERS    OF    GOODS. 

project  over  it  nine  inches.  That  two  or  three  hours  after  it  was 
left,  a  car  in  a  passing  train  caught  the  cutter  and  broke  it,  and  the 
Hrst  knowledge  the  agent  had  of  its  being  there,  was  seeing  it  pass 
his  office  at  the  passenger  depot  on  this  car,  broken.  That  it  was 
the  invariable  custom  fur  the  shipper  to  mark  property  and  its  des- 
tination, before  the  defendant  received  it,  when  he  weighed  it  and 
ascertained  the  freight;  and  that  the  plaintiff's  servant  did  mark  a 
box,  which  he  brought  with  the  cutter  in  the  afternoon,  before  ship- 
ment, and  said  he  wanted  it  to  go  to  Buffalo. 

At  the  close  of  the  plaintiff's  testimony,  and  at  the  close  of  the 
evidence,  the  defendant  made  a  motion  for  a  nonsuit,  upon  the 
ground,  that,  upon  the  undisputed  facts,  the  plaintiff  was  not  entitled 
to  recover,  which  motion  was  denied  by  the  court,  and  an  exception 
taken  to  the  decision  by  the  defendant. 

The  jury  found  a  verdict  for  the  plaintiff  for  $78.10,  for  which 
judgment  with  costs  was  entered.  The  defendant  appealed  to  the 
General  Term  of  that  court,  whero  the  judgment  was  affirmed.  The 
defendant  thereupon  appealed  to  this  court. 

^IiLLKR,  J.  I  am  of  the  opinion  that  the  court  erred  in  refusing 
to  nonsuit  the  4)laintiff_upon_the  trial.  To  render  a  party  liable  as 
a  common^  carrierjit^  inust__be^stablished  that^  the  property  w^ 
actually  delivered  to  the  common  carrier  or  to  some  person  duly 
authorized  to  act  on  his  behalf.  The  responsibility  of  the  carrier 
does  not  commence  until  the  delivery  is  completed.  Angell  on  Car- 
riers, §  129;  Story  on  Bailments,  §  532.  It  is  not  enough  that  the 
property  is  delivered  upon  the  premises,  unless  the  delivery  is  accom- 
panied by  notice  to  the  proper  person.  Packard  v.  Getman,  6  Cow. 
757;  Trevor  V.  U.  &  S.  K.  K.  Co.,  7  Hill,  47;  Blanchard  r.  Isaacs, 
3  Barb.  388;  2  Kent  Com.  60-4;  1  Pars,  on  Con.  G54.  The  liability 
of  the  carrier  attaches  only  from  the  time  of  the  acceptance  of  the 
goods  by  him.  Story  on  Bailments,  §  533;  6  Cow.  supra.  To  com- 
l)lete  the  delivery  fif  the  property  within  the  rules  laid  down  in 
the  authorities,  I  think  it  is  also  essential  that  the  property  should 
be  placed  in  such  a  position  that  it  may  be  taken  care  of  by  the 
agent  or  person  having  charge  of  the  business,  and  under  his  imme- 
diate control.  It  must  be  accepted  and  received  by  the  agent.  It 
appears  in  the  case  at  bar  that  the  cutter  of  the  plaintiff  was  ]ilaced 
upon  the  platform  of  the  defendant's  freight-house,  l)y  a  servant  of 
the  plaintiff,  the  freight  having  been  previously  jiaid,  to  be  trans- 
ported to  Buffalo.  At  the  time  when  it  was  thus  left,  a  baggage- 
man in  the  defendant's  emjjloyment,  who  was  then  engaged  in 
sweeping  out  the  depot,  was  notified  that  there  was  some  freight  to 
go  t^)  I'.iiffalo  in  the  noon  train.  Tlie  servant  of  tlie  plaintiff  testifies 
that  lie  liad  seen  this  person  receive  and  i>ut  freight  on  the  cars,  and 
at  this  time  he  apparently  had  charge  of  the  depot,  although  the 
proof  on  the  part  of  the  defendant  sIjows  tliat  another  employee  was 
the  real  freight  agent,  and  tlie  person  witii  whom  the  contract  was 


DELIVERY   TO   CARRIER.  63 

made  for  the  carriage  of  the  property,  and  that  the  baggage-man  had 
no  authority  to  receive  it.  Upon  this  state  of  facts,  I  am  inclined 
to  think  that  the  plaintiff  had  established  sufficient  j^rima  facie  to 
submit  to  the  jury  the  question  whether  the  baggage-man  was  author- 
ized to  receive  the  property,  and  whether  the  notice  to  him  was  of 
itself  sufficient.  Persons  dealing  with  railroad  corporations,  and 
parties  engaged  in  the  transportation  of  freight,  have  a  right  to  con- 
sider that  those  usually  employed  in  the  business  of  receiving  and 
forwarding  it,  have  ample  authority  to  deal  with  them.  It  is 
enough  to  establish  a  delivery,  in  the  first  instance,  to  prove  that  a 
person  thus  acting  received  and  accepted  the  property  for  the  pur- 
pose of  transportation,  and  even  although  it  subsequently  appears 
that  another  employee  was  actually  the  agent  having  charge  of  this 
department  of  business,  yet  the  company  who  sanction  the  perform- 
ance of  this  duty  by  other  persons  in  their  employment,  and  thus 
hold  out  to  the  world  that  they  are  authorized  agents,  are  not  at 
liberty  to  relieve  themselves  from  responsibility  by  repudiating 
their  acts.  So  far,  then,  as  this  branch  of  the  case  is  concerned,  it 
was  at  least  a  question  of  fact,  to  be  submitted  to  the  jury  under 
proper  instructions,  whether  the  baggage-man  of  the  defendant,  to 
whom  it  is  claimed  by  the  plaintiff  the  cutter  was  delivered,  was  the 
agent  of  the  defendant,  duly  authorized  to  receive  the  same,  and 
whether  notice  of  its  delivery  was  given  to  him  as  such  agent.  But 
whether  he  was  such  agent,  or  the  duty  of  receiving  freight  devolved 
upon  another  person,  the  defendant  could  not  be  held  liable  under 
any  circumstances,  without  an  actual  and  complete  delivery  of  the 
property  into  the  possession  of  the  corporation,  and  under  its  con- ^ 
trol.  This,  I  think,  was  not  done.  The  undisputed  testimony 
shows  that  the  cutter  was  placed  upon  the  platform,  and  that  within 
two  or  three  hours  afterward,  it  was  carried  away  and  broken  to 
pieces  by  a  passing  train  of  cars.  The  fact  that  it  was  thus  carried 
away  evinces  that  it  was  carelessly  exposed  by  the  plaintiff's  ser- 
vant; that  the  destruction  of  the  cutter  was  occasioned  by  his  negli- 
gence, and  that  the  delivery  was  not  as  perfect  and  complete  as  it 
should  have  been. 

The  accident  would  not  have  happened  had  the  cutter  been  placed 
beyond  the  reach  of  passing  trains.  It  was  not  enough  that  the 
agent  was  notified,  to  make  out  a  valid  acceptance  and  delivery. 
The  place  of  delivery  was  important,  and  it  was_  equaUy  essential 
that  due  care  should  be  exercised.  Suppose  tTie"  servant  had  left 
the  cutter  on  the  track  of  the  railroad,  and  notified  the  agent,  would 
the  defendant  have  been  responsible?  Clearly  not,  for  the  apparent 
reason  that  there  was  no  delivery  upon  the  premises,  no  surrender  of 
the  property  into  the  possession  of  the  agent.  Until  it  was  actually 
delivered,  the  agent  was  under  no  obligation  to  take  charge  of  the 
property,  even  if  notified.  It  is  apparent  that  the  plaintiff  was  in 
fault  in  not  delivering  the  property  to  the  defendant,  and  in  leaving 


64  CARRIERS   OF   GOODS. 

it  in  an  exposed  condition,  which  caused  its  destruction;  and,  hav- 
ing failed  to  establish  this  material  part  of  his  case,  should  have 
been  nonsuited.  As  a  new  trial  must  be  granted  for  the  error  stated, 
it  is  not  important  to  examine  the  other  questions  raised  and 
discussed. 

Judgment  reversed,  and  new  trial  granted,  with  costs  to  abide  the 
event. 


GREEN   V.    MILWAUKEE   &   ST.    PAUL   E.    CO. 

38  la.  100.     1S74. 

Action*  to  recover  the  value  of  a  trunk  and  contents  of  clothing 
alleged  to  have  been  lost  or  destroyed  while  in  possession  of  defend- 
ant as  a  carrier.  There  was  a  trial  to  a  jury,  and  a  verdict  rendered 
against  plaintiff  under  an  instruction  of  the  court  to  the  effect  that 
there  was  no  evidence  sho.wing  that  the  trunk  was  delivered  to 
defendant  or  its  agents.  From  a  judgment  rendered  upon  this  ver- 
dict plaintiff  appeals. 

Beck,  C.  J.     The  evidence  discloses  the  fact  that  plaintiff,  desir- 
ing to  take  passage  by  an  early  morning  train  on  defendant's  road 
at  Boscobel,  in  the  State  of  Wisconsin,  for  Decorah,  sent  her  trunk 
the  evening  before  by  a  drayman  to  defendant's  dejjot.     It  was  left 
by  the  drayman  in  the  waiting-room,  and  as  there  were  no  employees 
of  defendant  about  the  premises,  no  notice  thereof  was  given  to  any 
one.     This  was  after  business  hours  in  the  evening.     It  was  shown 
^  that  plaintiff  had  quarterly,  for  three  years,  been   in  the  habit  of 
I  making  tlie  same  journey  she  was  about  to  take,  and  had  always 
^sent  her  trunk  the  evening  before,  as  she  did  in  this  case,  and  that 
lother  travellers  were  in  the  habit  of  doing  the  same  thing  when  tliey 
went  by  the  early  train.     The  drayman  testified  tliat  lie  had  often 
'  left  baggage  at  the  depot  under  similar  circumstances,  but  that  his 
1  custom  was  to  notify  the  depot  agent  or  servant  of  defendant. 

Upon  this  evidence  the  court  directed  the  jury  that  there  was  no 
proof  of  the  delivery  of  tlie  trunk  to  defendant  or  its  servants. 

It  is  not  claimed  that  defendant  wo\ild  be  liabliMvithout  a  delivery, 
either  actual  or  constructive,  of  tlie  property  to  its  agent  or  servant. 
That  a  delivery  may  be  made  at  the  proi)er  place  of  receiving  such 
baggage  under  the  express  assent  or  authority  of  the  carrier  without 
notice  to  its  employees  will  not,  we  presume,  be  disputed.  It  i.s 
equally  clear  upon  princij)!!*  that  this  assent  may  be  presumed  from 
tjie  course  of  business  or  custom  of^  Uic-^arrier^^  Ujion  ovidenc(^  of 
this  character  contracts  based  upon  business  transactions  are  con- 
stantly established.  The  citation  of  authority  is  not  required  to 
support  tliis  position.  See  ^lerriam  v.  Hartford  &  N.  II.  K.  K.  Co., 
20  Conn.  ."..";». 


DELIVERY   TO   CARRIER.  65 

The  instruction  which  is  the  foundation  of  plaintiff's  objection 
directs  the  jury  that  there  was  no  evidence  of  a  delivery  of  the  trunk 
to  the  defendant.  In  this  we  think  there  is  error.  There  was  evi- 
dence tending  to  show  a  course  of  business  on  the  part  of  defendant, 
a  custom,  to  receive  baggage  left  at  the  station-house,  as  in  this 
case,  without  notice  to  plaintiff's  servants.  Upon  evidence  of  this 
character,  it  was  proper  that  the  facts  should  have  been  left  to  the 
determination  of  the  jury,  whether  there  had  been  a  delivery  of 
the  property  within  the  rules  above  announced,  —  whether  a  course 
of  business,  a  custom,  had  been  established,  to  the  effect  that  a 
delivery  of  baggage  at  the  station-house  without  notice,  was  regarded^ 
by  the  defendant  as  a  delivery  to  its  servants,  and  whether  plain- 
tiff's trunk  was  received  under  this  custom.  It  is  a  well-settled  rule 
that  the  courts  cannot  determine  upon  the  sufficiency  of  evidence  to 
authorize  a  verdict  where  there  is  a  conflict,  or  some  evidence  upon 
the  whole  case.  In  such  a  case  an  instruction  to  the  effect  that  there 
is  no  evidence,  and  directing  a  verdict  accordingly,  is  erroneous. 
Way  V.  Illinois  Cent.  R.  R.  Co.,  35  Iowa,  585. 

The  judgment  of  the  District  Court  is  reversed,   and  the  cause 
remanded. 

Reversed. 


MICHIGAN   SOUTHERN,   etc.  R.  CO.  v.    SHURTZ. 

7  Mich.  515.     1859. 

Martin,  C.  J.  The  principal  question  presented  by  this  case, 
is  whether  the  railroad  company  are  liable  as  common  carriers  for 
the  wheat  deposited  in  their  warehouse,  to  await  orders  for  trans- 
portation, and  a  determination  of  what  shall  be  its  destination.  We 
think  they  are  not,  nor  should  they  be.  By  their  charter  the  com- 
pany have  no  right  to  charge  as  warehousemen  for  storage  of  goods 
awaiting  transportation ;  but  this  disability  does  not  of  itself  create 
any  liability.  When  the  goods  are  delivered  to  be  transported  to  a 
specified  point,  the  liability  of  the  company  as  carriers  commences 
immediately ;  but  if  they  are  deposited  to  await  orders,  —  if  the 
company  cannot  carry  them  because  ignorant  of  the  contemplated 
destination,  or  because  no  destination  has  been  concluded  upon  by 
the  owner,  —  it  would  be  gross  injustice  to  hold  them  subject  to  the 
extraordinary  liabilities  of  common  carriers,  while  thus  awaiting  the 
determination  of  their  owner.  While  the  wheat  was  lying  in  their 
warehouse  awaiting  the  determination  of  Shurtz  as  to  its  destination, 
the  company  cannot  be  regarded  as  anything  more  than  gratuitous 
bailees,  and  are  liable  only  as  such.  If  the  intention  of  Shurtz 
cannot  be  clearly  seen  to  have  been  that  it  should  be  transported  to 

5 


66  CARRIERS   OF    GOODS. 

any  particular  place,  how  can  they  be  seen  to  be  carriers  of  it?     Can 

the  company  be  carriers  of  a  thing  not  to  be  carried?  But  when 
^  Shurtz  had  determined  to  what  point  he  would  have  his  wheat  trans- 
j  ported,  and  had  notified  the  company  of  such  determination,  tlien 
I  their  liability  as  carriers  commenced,  and  it  became  their  duty  to 
\  forward  it  without  delay.     This  is  the  obligation  of  their  charter, 

and  a  want  of  facilities  for  transportation  will  not  relieve  them 

from  that  liability. 


3.    DUTY  TO  SERVE  THE  PUBLIC, 
a.     Without  discrimination. 

CHICAGO   &   N.  W.  IIY.  CO.  v.    PEOPLE. 

5fJ  111.  305.     1870. 

Lawrexce,  C.  J.  This  was  an  application  for  a  mandamus,  on 
the  relation  of  the  owners  of  the  Illinois  River  elevator,  a  grain 
warehouse  in  the  city  of  Chicago,  against  the  Chicago  and  North- 
western Railroad  Company.  The  relators  seek  by  the  writ  to  com- 
pel the  railway  company  to  deliver  to  said  elevator  whatever  grain 
in  bulk  may  be  consigned  to  it  upon  the  line  of  its  road.  Tliere  was 
a  return  duly  made  to  tlie  alternative  writ,  a  demurrer  to  the  return, 
and  a  judgment  jiro  forma  upon  the  demurrer,  directing  the  issuing 
of  a  peremptory  writ.  From  that  judgment  the  railway  company 
has  prosecuted  an  appeal. 

Since  the  10th  of  August,  1.S6G,  the  Cliicago  and  Northwestern 
Company,  in  consequence  of  certain  arrangements  and  agreements 
on  and  before  that  day  entered  into  between  the  company  and  the 
owners  of  certain  elevators  known  as  tlie  "Galena,"  "Northwestern," 
"Munn  &  Scott,"  -'Union,"  "City,"  "  Munger  and  Armor,"  and 
"Wheeler,"  has  refused  to  deliver  grain  in  bulk  to  any  elevator 
except  those  above  named.  There  is  also  in  force  a  rule  of  the 
company,  adopted  in  1S64,  forbidding  the  carriage  of  grain  in  bulk 
if  consigned  to  any  particular  elevator  in  Chieago,  thus  ri'serving  to 
itself  the  selection  of  the  warehouse  to  which  the  grain  sliould  bo 
delivered.  Tlie  rule  also  provides  that  grain  in  bags  shall  bo 
charged  an  additioiuil  price  for  transportation.  Tliis  rule  is  still  in 
force. 

In  the  oral  argument  of  this  case  it  was  claimed,  by  counsel  for 
the  respondent,  that  a  railway  company  was  a  mere  private  corpora- 


DUTY   TO   SEKVE   THE   PUBLIC.  67 

tion,  and  that  it  was  the  right  and  duty  of  its  directors  to  conduct 
its  business  merely  with  reference  to  the  pecuniary  interests  of  the 
stockholders.  The  printed  arguments  do  not  go  to  this  extent,  in 
terms,  but  they  are  colored  throughout  by  the  same  idea,  and  in  one 
of  them  we  find  counsel  applying  to  the  Supreme  Court  of  the  United 
States,  and  the  Supreme  Court  of  Pennsylvania,  language  of  severe, 
and  almost  contemptuous,  disparagement,  because  those  tribunals 
have  said  that  "a  common  carrier  is  in  the  exercise  of  a  sort  of 
public  office."  N.  J.  Steam  Nav.  Co.  v.  Merch.  Bank,  6  How.  381; 
Sanford  v.  Railroad  Co.,  24  Penn.  380.  If  the  language  is  not 
critically  accurate,  perhaps  we  can  pardon  these  courts,  when  we 
find  that  substantially  the  same  language  was  used  by  Lord  Holt, 
in  Coggs  V.  Bernard,  2  Lord  Eaymond,  909,  the  leading  case  in  all 
our  books  on  the  subject  of  bailments.  The  language  of  that  case 
is,  that  the  common  carrier  "exercises  a  public  employment." 

We  shall  engage  in  no  discussion  in  regard  to  names.  It  is 
immaterial  whether  or  not  these  corporations  can  be  properly  said 
to  be  in  the  exercise  of  "a  sort  of  public  office,"  or  whether  they 
are  to  be  styled  private  or  quasi-public  corporations.  Certain  it  is, 
that  they  owe  some  important  duties  to  the  public,  and  it  only  con- 
cerns us  now  to  ascertain  the  extent  of  these  duties  as  regards  the 
case  made  upon  this  record. 

It  is  admitted  by  respondent's  counsel  that  railway  companies 
are  common  carriers,  though  even  that  admission  is  somewhat  grudg- 
ingly made.  Regarded  merely  as  a  common  carrier  at  common  law, 
and  independently  of  any  obligations  imposed  by  the  acceptance  of 
its  charter,  it  would  owe  important  duties  to  the  public,  from  which 
it  could  not  release  itself,  except  with  the  consent  of  every  person 
who  might  call  upon  it  to  perform  them.  Among  these  duties,  as 
well  defined  and  settled  as  anything  in  the  law,  was  the  obligation 
to  receive  and  carry  goods  for  all  persons  alike,  without  injurious 
discrimination  as  to  terms,  and  to  deliver  them  in  safety  to  the  con- 
signee, unless  prevented  by  the  act  of  God  or  the  public  enemy. 
These  obligations  grew  out  of  the  relation  voluntarily  assumed  by 
the  carrier  toward  the  public,  and  the  requirements  of  public  policy, 
and  so  important  have  they  been  deemed  that  eminent  judges  have 
often  expressed  their  regret  that  common  carriers  have  ever  been 
permitted  to  vary  their  common-law  liability,  even  by  a  special 
contract  with  the  owner  of  the  goods. 

Regarded,  then,  merely  as  a  common  carrier  at  common  law,  the 
respondent  should  not  be  permitted  to  say  it  will  deliver  goods  at 
the  warehouses  of  A.  and  B.,  but  will  not  deliver  at  the  warehouse 
of  C,  the  latter  presenting  equal  facilities  for  the  discharge  of 
freight,  and  being  accessible  on  respondent's  line. 

But  railway  companies  may  well  be  regarded  as  under  a  higher 
obligation,  if  that  were  possible,  than  that  imposed  by  the  common 
law,  to  discharge  their  duties  to  the  public  as  common  carriers  fairly 


68  CARRIERS   OF   GOODS. 

and  impartially.  As  has  been  said  by  other  courts,  the  State  has 
endowed  them  with  something  of  its  own  sovereignty,  in  giving 
them  the  riglit  of  eminent  domain.  By  virtue  of  this  power,  they 
take  the  lands  of  the  citizen  against  his  will  and  can,  if  need  be, 
demolish  his  house.  Is  it  supposed  these  great  powers  were  granted 
merely  for  the  private  gain  of  the  corporators?  On  the  contrary,  we 
all  know  the  companies  were  created  for  the  public  good. 

The  object  of  the  legislature  was  to  add  to  the  means  of  travel 
and  commerce.  If,  then,  a  common  carrier  at  common  law  came 
under  obligations  to  the  public  from  which  he  could  not  discharge 
himself  at  his  own  volition,  still  less  should  a  railway  company  be 
permitted  to  do  so,  when  it  was  created  for  the  public  benefit  and 
has  received  from  the  public  such  extraordinary  privileges.  Rail- 
way charters  not  only  give  a  perpetual  existence  and  great  power, 
but  they  have  been  constantly  recognized  by  the  courts  of  this 
country  as  contracts  between  the  companies  and  the  State,  imposing 
reciprocal  obligations. 

The  courts  have  always  been,  and  we  trust  always  will  be,  ready 
to  protect  these  companies  in  their  chartered  rights,  but,  on  the 
other  hand,  we  should  be  equally  ready  to  insist  that  they  perform 
faithfully  to  the  public  those  duties  which  were  the  object  of  their 
chartered  powers. 

The  contract  in  question  is  peculiarly  objectionable  in  its  char- 
acter and  peculiarly  defiant  of  the  obligations  of  the  respondent  to 
the  public  as  a  common  carrier.  If  the  principle  implied  in  it  were 
conceded,  the  railway  companies  of  the  State  might  make  similar 
contracts  with  individuals  at  every  important  point  iipon  their  lines, 
and  in  regard  to  other  articles  of  commerce  besides  grain,  and  thus 
subject  tlip  business  of  the  State  almost  wholly  to  tlieir  control,  as 
a  means  of  their  own  emolument.  Instead  of  making  a  contract 
with  several  elevators,  as  in  the  present  case,  each  road  that  enters 
Chicago  might  contract  with  one  alone  and  thus  give  to  the  owner  of 
sur-h  elevatr)r  an  altsolute  and  comjtlotc  monopoly  in  the  handling 
of  all  tlie  grain  that  might  be  trans])ort('d  over  such  road.  So,  too, 
at  every  important  town  in  the  interior,  each  road  might  contract 
that  all  the  lumber  carried  by  it  should  be  consigned  to  a  particular 
yard.  How  injurious  to  the  public  would  be  the  creation  of  such  a 
system  of  organized  monopolies  in  the  most  imjiortant  articles  of 
commerce,  claiming  existence  undrr  a  perpetual  charter  from  the 
State,  and,  by  the  sacredness  of  such  charter,  claiming  also  to  set 
the  If^gislative  will  itself  at  defiance,  it  is  hardly  worth  while  to 
8jK*culate.  It  would  be  difficult  to  exaggerate  the  evil  of  which  such 
a  system  would  be  the  cause,  when  fully  developed  and  managed  by 
unHcru[)ulou8  hands. 

Can  it  be  seriously  doubted  whether  a  contract,  involving  such  a 
principle,  and  such  results,  is  in  conflict  with  the  duties  wliich  the 


DUTY   TO   SERVE   THE   PUBLIC.  69 

company  owes  to  the  public  as  a  common  carrier?  The  fact  that  a 
contract  has  been  made  is  really  of  no  moment,  because,  if  the  com- 
pany can  bind  the  public  by  a  contract  of  this  sort,  it  can  do  the 
same  thing  by  a  mere  regulation  of  its  own,  and  say  to  these  relators 
that  it  will  not  deliver  at  their  warehouse  the  grain  consigned  to 
them,  because  it  prefers  to  deliver  it  elsewhere.  The  contract,  if 
vicious  in  itself,  so  far  from  excusing  the  road,  only  shows  that  the 
policy  of  delivering  grain  exclusively,  at  its  chosen  warehouses,  is 
a  deliberate  policy,  to  be  followed  for  a  term  of  years,  during  which 
these  contracts  run. 

The  principle  that  a  railroad  company  can  make  no  injurious  or 
arbitrary  discrimination  between  individuals  in  its  dealings  with  the 
public,  not  only  commends  itself  to  our  reason  and  sense  of  justice, 
but  is  sustained  by  adjudged  cases.  In  England,  a  contract  which 
admitted  to  the  door  of  a  station,  within  the  yard  of  a  railway  com- 
pany, a  certain  omnibus,  and  excluded  another  omnibus,  was  held 
void.     Marriot  v.  L.  &  S.  W.  R.  R.  Co.,  87  Eng.  Com.  Law,  498. 

In  Gaston  v.  Bristol  &  Exeter  Railroad  Company,  95  Eng.  Com. 
Law,  641,  it  was  held  that  a  contract  with  certain  ironmongers,  to 
carry  their  freight  for  a  less  price  than  that  charged  the  public,  was 
illegal,  no  good  reason  for  the  discrimination  being  shown. 

In  Crouch  v.  The  L.  &  N.  W.  R.  Co.,  78  Eng.  Com.  Law,  254,  it 
was  held,  a  railway  company  could  not  make  a  regulation  for  the 
conveyance  of  goods  which,  in  practice,  affected  one  individual  only. 

In  Sandford  v.  Railroad  Company,  24  Penn.  382,  the  court  held, 
that  the  power  given  in  the  charter  of  a  railway  company  to  regu- 
late the  transportation  of  the  road  did  not  give  the  right  to  grant 
exclusive  privileges  to  a  particular  express  company.  The  court 
say,  "If  the  company  possessed  this  power,  it  might  build  up  one 
set  of  men  and  destroy  others;  advance  one  kind  of  business  and 
break  down  another,  and  make  even  religion  and  politics  the  tests 
in  the  distribution  of  its  favors.  The  rights  of  the  people  are  not 
subject  to  any  such  corporate  control." 

We  refer  also  to  Rogers'  Locomotive  Works  v.  Erie  R.  R.  Co., 
5  Green,  380,  and  State  v.  Hartford  &  N.  H.  R.  Co.,  29  Conn.  538. 

It  is  insisted  by  counsel  for  the  respondent  that,  even  if  the 
relators  have  just  cause  of  complaint,  they  cannot  resort  to  the  writ 
of  mandamus.  We  are  of  opinion,  however,  that  they  can  have  an 
adequate  remedy  in  no  other  way,  and  that  the  writ  will  therefore 
lie. 

The  judgment  of  the  court  below  awarding  a  peremptory  manda- 
mus must  be  reversed,  because  it  applies  to  the  Galena  division  of 
respondent's  road,  as  well  as  to  the  Wisconsin  and  Milwaukee 
divisions.  If  it  had  applied  only  to  the  latter,  we  should  have 
affirmed  the  judgment.  The  parties  have  stipulated  that,  in  case  of 
reversal,  the  case  shall  be  remanded,  with  leave  to  the  relators  to 


70  CARRIERS   OF   GOODS. 

traverse  the  return.  We  therefore  make  no  final  order,  but  remand 
the  case,  with  leave  to  both  parties  to  amend  their  pleadings,  if 
desired,  in  view  of  what  has  been  said  in  this  opinion. 

Judgment  reversed. 


AYEES   V.   CHICAGO   &   ^'.   W.    EY.   CO. ,  Appellant. 
71  Wis.  372.     1888. 

Appeal  from  the  Circuit  Court  for  Sauk  County. 

This  case  was  here  on  a  question  of  pleading  upon  a  former  appeal. 
oS  Wis.  537.  The  amended  complaint  is  to  the  effect  that  the 
defendant,  being  a  common  carrier  engaged  in  the  transportation  of 
live-stock,  and  accustomed  to  furnish  cars  for  all  live-stock  offered, 
was  notified  by  the  plaintiffs,  on  or  about  October  13,  1882,  to  have 
four  such  cars  for  the  transportation  of  cattle,  hogs,  and  sheep  at  its 
station  La  Valle,  and  three  at  its  station  Reedsburg,  ready  for  load- 
ing on  Tuesday  morning,  October  17,  1882,  for  transportation  to 
Chicago;  that  the  defendant  neglected  and  refused  to  provide  such 
cars  at  either  of  said  stations  for  four  days,  notwithstanding  it  was 
able  and  might  reasonably  have  done  so;  and  also  neglected  and 
refused  to  carry  said  stock  to  Chicago  Avith  reasonable  diligence,  so 
that  they  arrived  there  four  days  later  tlian  tliey  otherwise  would 
have  done;  whereby  the  plaintiffs  suffered  loss  and  damage,  by 
decrease  in  price  and  otherwise,  $1700. 

Tlie  answer,  in  effect,  admitted  the  defendant's  incorporation  witli 
the  privileges  alleged;  "that  it  was  at  times  engaged  in  the  trans- 
portation over  its  roads  of  live-stock  when  and  if  it  was  able  to  do 
80,  and  was  accustomed  to  furnish  suitable  cars  therefor  upon  reason- 
able notice  when  within  its  power  to  do  so;  and  to  receive,  transport, 
and  deliver  such  live-stock  with  reasonable  dcsijati-h,  but  only  upon 
special  contracts  at  the  time  entered  into  between  the  shi])]ier  and 
this  defendant,  and  ui)on  such  terms  and  conditions  as  should  be 
agreed  upon  in  writing;  that  one  of  the  lines  of  this  defendant's 
railway  is  located  as  in  said  amended  comidaint  stated."  Tlie 
answer  also,  in  effect,  alleged  tliat  "within  a  reasonable  time,  and 
as  soon  as  it  rea.sonably  could,  and  as  soon  as  it  was  within  its 
X)Ower  to  do  so,"  after  the  application  of  the  i)laintiffs  for  such  cars, 
the  defendant  "forwarded  four  suitable  and  emjtty  cars  to  La  Valle," 
and  "three  suitable  and  empty  ears  to  Keedsburg,"  which  cars  were 
severally  ft^rwarded  with  reasftnable  despatch,  and  arrived  in  due, 
cour.se  and  as  soon  as  they  could  with  reasonable  despatch  Im;  for- 
warded over  its  line;  that  at  the  times  of  such  respective  sliipments 
the  plaintiffs  entered  into  an  agreement  in  writing  with  tlie  defend- 
ant for  the  transportation  of  said  stock  at  special  rates,  and  in  con- 


DUTY   TO   SERVE   THE    PUBLIC.  71 

sideration  thereof  it  was  agreed  that  the  defendant  should  not  be 
liable  for  loss  from  the  delay  of  trains  not  caused  by  the  defendant's 
negligence. 

At  the  close  of  the  trial  the  jury  returned  a  special  verdict  to  the 
effect,  (1)  at  the  times  named  the  plaintiffs  were  copartners  at  Reeds- 
burg,  engaged  in  buying  and  shipping  live-stock  to  the  Chicago 
market  for  sale;  (2)  that  at  the  times  stated  the  defendant  was  a 
common  carrier,  and  as  such  engaged  in  the  transportation  of  live- 
stock, and  accustomed  to  furnish  cars  for  and  transport  all  live-stock 
offered  for  that  purpose ;  (3)  that  one  of  its  lines  ran  from  La  Valle 
and  Eeedsburg  to  Chicago;  (4)  that  October  13,  1882,  the  plaintiffs, 
being  fully  apprised  of  the  state  of  the  Chicago  market  for  live-stock 
and  prices,  proceeded  to  buy  therefor  seven  car-loads  of  cattle,  hogs, 
and  sheep,  four  to  be  loaded  at  La  Valle  and  three  at  Reedsburg; 
(5,  6,7,  8,  9,  10,  14)  that  the  plaintiffs  notified  the  defendant's 
agents  at  the  respective  stations,  October  13,  1882,  to  have  such 
cars  in  readiness  at  said  stations  respectively,  October  17,  1882,  and 
that  such  notices  were  reasonable,  and  such  agents  promised  to  order 
the  cars  and  have  them  in  readiness  at  the  time;  (11)  that  two  cars 
were  furnished  at  Reedsburg,  October  17,  1882,  and  one  October  19, 
1882;  (12)  that  the  four  were  furnished  at  La  Valle,  October  19, 
1882 ;  (13)  that  the  defendant  furnished  two  as  soon  as  it  reasonably 
could,  but  five  it  did  not;  (15)  that  the  plaintiffs  received  no  notice 
before  October  17,  1882,  that  the  cars  would  not  be  furnished  as 
ordered;  (16,  17,  18)  that  prior  to  that  time,  and  with  the  expecta- 
tion that  the  cars  would  be  on  hand  as  ordered,  the  plaintiffs  had 
bought  sufficient  stock  to  load  said  several  cars,  and  had  the  same 
at  said  respective  stations  on  the  morning  of  October  17,  1882;  (19) 
that  the  defendant,  being  able  to  furnish  such  cars,  disregarded  its 
duty  as  a  common  carrier  of  live-stock  in  not  having  the  same  on 
hand  when  ordered ;  (20)  that  had  the  cars  been  so  furnished,  they 
would  have  arrived  at  Chicago  on  the  morning  of  October  18,  1882; 
(21)  as  it  was,  two  arrived  thereon  Thursday,  October  19,1882,  a.m., 
and  five  on  Friday,  October  20,  1882,  at  5.45  p.m.;  (22,  23,  24)  that 
the  market  value  of  hogs  in  Chicago,  on  Friday,  October  20,  was 
$7.36  per  hundred,  on  Saturday,  October  21,  was  $7.11,  and  on 
Monday,  October  23,  $6.81;  (25,  26,  27)  that  the  loss  on  the  hogs, 
by  reason  of  depreciation  of  the  market,  was  $140.08;  that  the  total 
damages  of  the  plaintiffs  on  all  the  stock  were  $825.97,  made  up  of 
the  following  items,  to  wit:  Taking  care  of  and  feeding  stock,  $50; 
shrinkage  on  hogs,  cattle,  and  sheep,  $408.35;  depreciation  in  value 
on  hogs  and  sheep,  $172.58;  and  interest  on  the  above  sums  until 
the  rendition  of  the  verdict,  $195.04. 

The  defendant  thereupon  moved  for  judgment  in  its  favor  upon 
the  verdict  and  record,  which  was  denied.  Thereupon  the  defendant 
moved  to  set  aside  the  verdict,  and  for  a  new  trial,  upon  the  grounds 
that  the  verdict  is  against  the  weight  of  the  evidence,  and  for  errors 


72  CARRIERS   OF   GOODS. 

of  the  court  in  its  charge  to  the  jury  aud  in  its  ruliugs  on  the  trial, 
and  because  the  damages  were  excessive  and  contrary  to  the  proofs, 
which  motion  was  denied.  Thereupon,  and  upon  the  motion  of  the 
phiintiffs,  judgment  was  ordered  in  their  favor  on  the  special  verdict 
for  S.S25.97  damages  and  costs.  From  the  judgment  entered  thereon 
accordingly  the  defendant  appeals. 

Cassodav,  J.  There  is  no  tiuding  of  any  agreement  on  the  part 
of  the  defendant  to  have  the  cars  in  readiness  at  the  stations  on 
Tuesday  morning,  October  17,  1882.  There  is  no  testimony  to 
support  such  a  finding.  One  of  the  plaintiffs  testified,  in  effect, 
that  he  told  the  agent  that  he  would  want  the  cars  on  the  morning 
of  the  day  named;  that  the  agent  took  down  the  order,  put  it  on  his 
book,  and  said,  "All  right,"  he  would  try  and  get  them,  but  that 
they  were  short  because  they  were  then  using  more  cars  for  other 
purposes;  that  nothing  more  was  said.  It  appears  in  the  case  that 
the  cars  were  in  fact  furnished.  It  also  appears  that,  as  the  ship- 
ments were  made,  special  written  contracts  therefor  were  entered 
into  between  the  parties,  whereby  it  was,  in  effect,  agreed  and 
understood  that  the  plaintiffs  should  load,  feed,  water,  and  take  care 
of  such  stock  at  their  own  expense  and  risk,  aud  that  they  would 
assume  all  risk  of  injury  or  damage  that  the  animals  might  do  to 
themselves  or  each  other,  or  which  might  arise  by  delay  of  trains; 
that  the  defendants  should  not  be  liable  for  loss  by  jumping  from 
the  cars  or  delay  of  trains  not  caused  by  the  defendant's  negligence. 
The  court,  in  effect,  charged  the  jury  that  there  was  no  evidence  of 
any  negligence  on  the  part  of  the  defendant  causing  delay  in  any 
train  after  shipment,  and  hence  that  the  delay  of  the  two  cars 
admitted  to  have  been  furnished  in  time  was  not  before  them  for 
consideration,  Tliis  relieves  the  case  from  all  liability  on  contract. 
It  also  narrows  the  case  to  the  defendant's  liubility  for  the  delay  of 
two  days  in  furnishing  the  five  cars  at  the  stations  named,  as  ordered 
by  the  plaintiffs,  and  in  the  absence  of  any  contract  to  do  so. 

In  liichardson  v.  C.  &  N.  W,  K.  Co.,  01  Wis.  001,  18  Am.  &  Eng. 
R.  Cas.  ry.iO,  it  wixs,  in  effect,  hold  competent  for  a  railroad  C(mii):iny 
engaged  in  the  business  of  transporting  live-stock  to  exempt  itself 
by  express  contract  "from  damage  caused  wliolly  or  i)erhaps  in  ]);irt 
by  the  in.stinct.s,  habits,  propensities,  wants,  necessities,  vices,  or 
locomotion  of  such  animals."  And  it  was  then  said:  "Since  the 
action  is  not  based  ui)on  contract,  tln'  i)laintiff"  must  recover,  if  at 
all,  by  reason  of  tlie  defendant's  liability  as  a  common  carrier  upon 
mere  notice  to  furnish  cars  and  a  readiness  to  ship  at  the  time 
notified.  Did  sucli  notice  and  readiness  to  ship  create  such  liability? 
We  have  seen  that  a  carrier  of  live-stock  may,  to  at  least  a  cert.un 
extent,  limit  its  lial)ility.  Whether  tlie  defendant  was  accustomed 
to  80  limit  its  liability,  or  to  carry  all  live-stock  tendered  ujion 
notice,  without  restriction,  does  not  njjpear  from  the  reconl.  11  it 
was  accustomed  to  so  limit,  and  the  limitation  was  legal,  it  shouM 


DUTY   TO    SEKVE   THE   PUBLIC.  73 

at  least  have  been  so  alleged,  together  with  an  offer  to  comply  with 
the  customary  restriction.  If  it  was  accustomed  to  carry  all  live- 
stock oiTered  upon  notice  and  tender,  and  without  restriction,  then 
it  would  be  difficult  to  see  upon  what  ground  it  could  discriminate 
against  the  plaintiff  by  refusing  to  do  for  him  what  it  was  constantly 
in  the  habit  of  doing  for  others." 

In  that  case  there  was  a  failure  to  allege  any  such  custom  or  hold- 
ing out  on  the  part  of  the  defendant,  or  that  reasonable  notice  had 
been  given  to  the  defendant  to  furnish  suitable  cars  to  the  person 
applying  therefor,  or  that  the  same  was  within  its  power  to  do  so; 
and  hence  the  demurrer  was  sustained.  The  allegations  thus  want- 
ing in  that  case  are  present  in  this  complaint.  It  is,  moreover,  in 
effect  admitted  that  the  defendant  was  at  times,  when  able  to  do  so, 
engaged  in  the  transportation  of  live-stock  over  its  roads,  one  line 
of  which  runs  through  the  stations  in  question ;  that  it  was  accus- 
tomed to  furnish  suitable  cars  therefor,  upon  reasonable  notice,  when 
within  its  power  to  do  so;  and  to  receive,  transport,  and  deliver 
such  live-stock  with  reasonable  despatch,  but  only  upon  special  con- 
tracts  at  the  time  entered  into  between  the  shipper  and  the  defend- 
ant, and  upon  such  terms  and  conditions  as  should  be  agreed  upon 
in  writing.  It  is,  moreover,  manifest  that  the  defendant  actually 
undertook  to  furnish  the  cars  at  the  time  designated  by  the  plain- 
tiffs; that  it  succeeded  in  furnishing  two  of  them  on  time;  that  there 
was  a  delay  of  two  days  in  furnishing  the  other  five ;  and  that  the 
plaintiffs  were  willing  to,  and  did,  submit  to  the  terms  and  condi- 
tions of  carriage  imposed  by  the  defendant  by  signing  the  special 
written  contracts  mentioned.  It  must  be  assumed,  also,  that  such 
special  written  contracts  were  substantially  the  same  as  all  contracts 
made  by  the  defendant  at  that  season  of  the  year  for  the  shipment 
of  similar  live-stock  under  similar  circumstances.  Otherwise  the 
defendant  would  be  justly  chargeable  with  unlawful  discrimination ; 
the  right  to  do  which  the  learned  counsel  for  the  defendant  frankly 
disclaimed  upon  the  argument. 

We  are  therefore  forced  to  the  conclusion  that  at  the  time  the 
plaintiffs  applied  for  the  cars  the  defendant  was  engaged  in  the 
business  of  transporting  live-stock  over  its  roads,  including  the  line 
in  question,  and  that  it  was  accustomed  to  furnish  suitable  cars 
therefor,  upon  reasonable  notice,  whenever  it  was  within  its  power 
to  do  so;  and  that  it  held  itself  out  to  the  public  generally  as  such 
carrier  for  hire  upon  such  terms  and  conditions  as  were  prescribed 
in  the  written  contracts  mentioned.  These  things,  in  our  judgment, 
made  the  defendant  a  common  carrier  of  live-stock,  with  such 
restrictions  and  limitations  of  its  common-law  duties  and  liabilities 
as  arose  from  the  instincts,  habits,  propensities,  wants,  necessities, 
vices,  or  locomotion  of  such  animals,  under  the  contracts  of  carriage. 
This  proposition  is  fairly  deducible  from  what  was  said  in  Eichard- 
son  u.  C.  &  N.  W.  E.  Co.,  suj^ra,  and  is  supported  by  the  logic  of 


74  CAKKIERS   OF   GOODS. 

numerous  cases.  Xorth  Penn.  K.  Co.  v.  Commercial  Bank,  123  U. 
S.  727;  :Moultou  v.  St.  P.,  M.  &  M.  K.  Co.,  31  Miuu.  85,  12  Am.  & 
Eng.  E.  Cas.  13;  Lindsley  r.  C.  M.  &  St.  P.  R.  Co.,  36  Miuu.  539; 
Evaus  V.  F.  R.  Co.,  Ill  Mass.  142;  Kimball  v.  R.  &  B.  R.  Co.,  26  Vt. 
247,  62  Am.  Dec.  567;  Rixford  r.  Smith,  52  N.  H.  3oo;  Clark  v.  R. 
&  S.  R.  Co.,  14  X.  Y.  570,  67  Am.  Dec.  205;  South  &  N.  A.  R.  Co. 
r.  Henlein,  52  Ala.  606;  Baker  v.  L.  &  :N.  R.  Co.,  10  Lea,  304,  16 
Am.  &  Eug.  R.  Cas.  149;  Philadelphia,  W.  &  B.  R.  Co.  v.  Lehman. 
56  ^Id.  209;  McFaddeu  v.  M.  P.  R.  Co.,  92  Mo.  343;  3  Am.  &  Eng. 
Cyclop.  Law,  pp.  1-10,  and  cases  there  cited.  This  is  in  liarmony 
Avith  the  statement  of  Parke,  B.,  in  the  case  cited  by  counsel  for  the 
defendant,  that  "at  common  law  a  carrier  is  not  bound  to  carry  for 
every  person  tendering  goods  of  (oii/  description,  bid  Iiis  obliijat'nni 
is  to  carry  accorr/hir/  to  his  juiblic  jtrofissioii.^'  Johnsou  v.  ^Midland 
R.  Co.,  4  Exch.  372.  Being  a  common  carrier  of  live-stock  for  hire, 
with  the  restrictions  and  limitations  named,  and  holding  itself  out 
to  the  public  as  such,  the  defendant  is  bound  to  furnish  suitable 
cars  for  such  stock,  upon  reasonable  notice,  whenever  it  can  do  so 
with  reasonable  diligence  without  jeopardizing  its  other  business  as 
such  common  carrier.  Texas  &  P.  R.  Co.  v.  Nicholson,  61  Tex. 
491;  Chicago  &  A.  R.  Co.  v.  Erickson,  91  111.  613;  Rallentine  v.  X. 
M.  R.  Co.,  40  Mo.  491;  Guinn  v.  W.,  St.  L.  &  P.  R.  Co.,  20  Mo. 
App.  453. 

Whether  the  defendant  could  with  such  diligence  so  furnish  upon 
the  notice  given,  was  necessarily  a  question  of  fact  to  be  determined. 
The  plaintiffs,  as  such  shippers,  had  the  right  to  command  the 
defendant  to  furnish  such  cars.  But  they  had  no  right  to  insist 
upon  or  expect  compliance,  except  upon  giving  reasonable  notice  of 
the  time  when  they  would  be  required.  To  be  reasonable,  such 
notice  must  have  been  sufficient  to  enable  the  defendant,  with  reason- 
able diligence  under  the  circumstances  then  existing,  to  furnish  the 
cars  without  interfering  with  previous  orders  from  other  shippers  at 
the  same  station,  or  jeopardizing  its  business  on  otlier  portions  of  its 
road.  It  must  be  remembered  tliat  the  defendant  has  many  lines  of 
railroad  scattered  through  different  States.  Along  each  and  all  of 
these  different  lines  it  has  stations  of  more  or  less  importance.  Tlie 
company  owes  the  same  duty  to  shij)pers  at  any  one  station  as  it 
does  to  tlie  shippers  at  any  other  station  of  the  same  business 
iini)ortance. 

The  rights  of  all  shippers  applying  for  such  cars  under  the  same 
circumstances  are  necessarily  equal.  No  one  station,  much  less  any 
one  shij)i)er,  has  tl»e  riglit  to  command  the  entire  resources  of  tlie 
company  to  the  exr-lusion  or  i)r('judice  of  otlicr  stations  and  otlier 
shippers.  Most  of  such  suitable  ears  must  necessarily  Ijc  scattered 
along  and  upon  such  different  lines  of  railroad,  loaded  or  unloaded. 
Many  will  necessarily  be  at  the  larger  centres  of  trade.  Tlie  con- 
ditions of  the  market  are  not  always  the  same,  but  are  lial>le   to 


DUTY   TO   SERVE    THE   PUBLIC.  75 

fluctuations,  and  may  be  such  as  to  create  a  great  demand  for  such 
cars  upon  one  or  more  of  such  lines,  and  very  little  upon  others. 
Such  cars  should  be  distributed  along  the  different  lines  of  road,  and 
the  several  stations  on  each,  as  near  as  may  be  in  proportion  to  the 
ordinary  business  requirements  at  the  time,  in  order  that  shipments 
may  be  made  with  reasonable  celerity.  The  requirement  of  such 
fair  and  general  distribution  and  uniform  vigilance  is  not  only 
mutually  beneficial  to  producers,  shippers,  carriers,  and  purchasers, 
but  of  business  and  trade  generally.  It  is  the  extent  of  such  busi- 
ness ordinarily  done  on  a  particular  line,  or  at  a  particular  station, 
which  properly  measures  the  carrier's  obligation  to  furnish  such 
transportation.  But  it  is  not  the  duty  of  such  carrier  to  discrimi- 
nate in  favor  of  the  business  of  one  station  to  the  prejudice  and 
injury  of  the  business  of  another  station  of  the  same  importance. 
These  views  are  in  harmony  with  the  adjudications  last  cited. 

The  important  question  is  whether  the  burden  was  upon  the  plain- 
tiffs to  prove  that  the  defendant  might,  with  such  reasonable  dili- 
gence and  without  thus  jeopardizing  its  other  business,  have 
furnished  such  cars  at  the  time  ordered  and  upon  the  notice  given; 
or  whether  such  burden  was  upon  the  defendant  to  prove  its  ina- 
bility to  do  so.  We  find  no  direct  adjudication  upon  the  question. 
Ordinarily,  a  plaintiff  alleging  a  fact  has  the  burden  of  proving  it. 
This  rule  has  been  applied  by  this  court,  even  where  the  complaint 
alleges  a  negative,  if  it  is  susceptible  of  proof  by  the  plaintiff. 
Helper  v.  State,  58  Wis.  46.  But  it  has  been  held  otherwise  where 
the  only  proof  is  peculiarly  within  the  control  of  the  defendant. 
Mecklem  v.  Blake,  16  Wis.  102;  Beckmann  v.  Henn,  17  Wis.  412; 
Noonan  v.  Ilsley,  21  Wis.  144;  Great  Western  E.  Co.  v.  Bacon,  30 
111.  352;  Brown  v.  Brown,  30  La.  Ann.  511.  Here  it  may  have 
been  possible  for  the  plaintiffs  to  have  proved  that  there  were  at  the 
times  and  stations  named,  or  in  the  vicinity,  empty  cars,  or  cars 
which  had  reached  their  destination  and  might  have  been  emptied 
with  reasonable  diligence,  but  they  could  not  know  or  prove,  except 
by  agents  of  the  defendant,  that  any  of  such  cars  were  not  subject 
to  prior  orders  or  superior  obligations.  The  ability  of  the  defend- 
ant to  so  furnish  with  ordinary  diligence  upon  the  notice  given,  upon 
the  principles  stated,  was,  as  we  think,  peculiarly  within  the  knowl- 
edge of  the  defendant  and  its  agents,  and  hence  the  burden  was  upon 
it  to  prove  its  inability  to  do  so.  Where  a  shipper  applies  to  the 
proper  agency  of  a  railroad  company  engaged  in  the  business  of 
such  common  carrier  of  live-stock  for  such  cars  to  be  furnished  at 
a  time  and  station  named,  it  becomes  the  duty  of  the  company  to 
inform  the  shipper  within  a  reasonable  time,  if  practicable,  whether 
it  is  unable  to  so  furnish,  and  if  it  fails  to  give  such  notice,  and 
has  induced  the  shipper  to  believe  that  the  cars  Avill  be  in  readiness 
at  the  time  and  place  named,  and  the  shipper,  relying  upon  such 
conduct  of  the  carrier,  is  present  with  his  live-stock '^at  the  time  and 


76  CARRIERS   OF   GOODS. 

place  named,  and  finds  no  cars,  there  would  seem  to  be  no  good 
reason  why  the  company  should  not  respond  in  damages.  Of  course, 
these  observations  do  not  involve  the  question  whether  a  railroad 
company  may  not  refrain  from  engaging  in  such  business  as  a  com- 
mon carrier;  nor  whether,  having  so  engaged,  it  may  not  discontinue 
the  same. 

The  court  very  properly  charged  the  jury,  in  effect,  that  if  all  the 
cars  had  been  furnished  on  time,  as  the  two  were,  it  was  reasonable 
to  presume,  in  the  absence  of  any  proof  of  actionable  negligence  on 
the  part  of  the  defendant,  that  they  would  have  reached  Chicago  at 
the  same  time  the  two  did,  — to  wit,  Thursday,  October  19,  1882,  a.m., 
—  whereas  they  did  not  arrive  until  Friday  eveuing.  This  was  in 
time,  however,  for  the  market  in  Chicago  on  Saturday,  October  21, 
1882.  This  necessarily  limited  the  recovery  to  the  expense  of  keep- 
ing, the  shrinkage,  and  depreciation  in  value  from  Thursday  until 
Saturday.  Chicago  &  A.  R.  Co.  v.  Erickson,  91  111.  013.  The  trial 
court,  however,  refused  to  so  limit  the  recovery,  but  left  the  jury 
at  liberty  to  include  such  damages  down  to  Monday,  October  23, 
1882.  For  this  manifest  error,  and  because  there  seems  to  have 
been  a  mistrial  in  some  other  respects,  the  judgment  of  the  Circuit 
Court  is  reversed  and  the  cause  is  remanded  for  a  new  trial. 


SAEGENT   V.   BOSTON  &   LOWELL  RAILROAD 
CORPORATION. 

115  Mass.  no.     1874. 

Tort  against  the  Boston  &  Lowell  Railroad  Corporation,  and  the 
Nashua  &  Lowell  Railroad  Corporation. 

Wklls,  J.  This  action  is  founded  upon  the  supposed  obligation 
of  the  defendants,  as  common  carriers,  to  provide  facilities  and 
accommodations  to  enable  tlie  plaintiff  to  transact  his  business  as 
expressman  over  and  upon  the  railroads  of  the  defendants.  For  this 
purpose  he  requires  tliat  his  merchandise  and  parcels  shall  be  trans- 
jwrtod,  not  as  freiglit  under  the  general  charge  and  control  of  the 
managers  and  servants  of  tlie  railr(»a«ls,  but  in  their  passenger  trains 
and  under  the  exclusive  control  and  sui)ervision  of  the  plaintiff  and 
his  agents;  who  also  require  special  accommodations  and  facilities  in 
the  cars  and  stations  of  the  defendants,  for  the  receipt  and  distribu- 
tion ()i  their  ])ackages.  It  is  not  .alleged  tliat  there  is  any  contract 
for  Hucli  services.  The  contract  which  once  existed,  and  the  course 
of  business  in  previous  years,  arc  recited  for  the  jmrimse  »»f  sliowing 
the  manner  in  which  tlie  business  of  the  plaintiff  had  grown  uj)  and 
the  good-will  connected  therewith  had  been  gained,  as  bearing  ujmn 


DUTY   TO   SERVE   THE   PUBLIC.  77 

the  damages  caused  by  withdrawing  from  him  the  means  for  its 
further  prosecution.  The  complaint  is,  that  under  the  guise  of  a 
proposal  to  sell  or  let  the  privilege  which  the  plaintiff  and  his  asso- 
ciates had  before  enjoyed,  to  be  used  exclusively  by  the  one  party 
who  would  pay  most  for  it,  the  defendants  had  in  fact  denied  it  to 
all,  and  assumed  the  conduct  of  the  business  of  express  carriage  and 
parcel  delivery  by  its  own  agents  and  servants. 

The  allegation  of  the  second  count,  that  the  defendant  had  refused 
to  receive  and  transport  articles  of  freight  for  the  plaintiff  in  the 
usual  modes  of  transportation  of  freight,  is  abandoned. 

We  know  no  principle  or  rule  of  law  which  imposes  upon  a  rail- 
road corporation  the  obligation  to  perform  service  in  the  transpor- 
tation of  freight,  otherwise  than  a  carrier  of  goods  for  the  owner 
in  accordance  with  their  consignment;  or  which  forbids  it  from 
establishing  uniform  regulations  applicable  alike  to  all  persons  com- 
posing the  public  to  whom  the  service  is  due.  We  are  pointed  to 
no  provision  in  the  charters  of  these  defendants,  or  in  the  general 
laws  relating  to  railroads,  which  subjects  the  use  of  their  roads  to 
the  convenience  or  requirements  of  other  carriers  than  the  corpora- 
tions authorized  to  construct  and  operate  them,  and  such  other  rail- 
roads as  may  have  been  authorized  to  enter  upon  or  unite  with  and 
use  them.     Gen.  Sts.  c.  63,  §  117. 

All  the  provisions  of  law  for  the  regulation  of  railroads  contem- 
plate the  unlimited  exercise  by  the  corporation  of  the  rights  and 
duties  of  general  carriers  of  goods  and  passengers;  and  this  involves 
the  right  to  adopt  any  and  all  reasonable  rules  and  regulations  to 
direct  the  mode  in  which  their  business  shall  be  transacted.  They 
cannot  be  required  to  convert  their  passenger  trains  to  the  purposes 
of  freight  at  the  discretion  of  parties  not  responsible  for  the  manage- 
ment of  the  trains ;  nor  can  they  be  compelled  to  admit  others  than 
their  own  agents  and  servants  upon  their  trains  or  to  their  stations 
for  the  custody,  care,  receipt,  and  delivery  of  freight  or  parcels. 

Whether  the  defendants,  in  establishing  and  conducting  the  busi- 
ness of  their  own  "parcel  department,"  undertake  to  collect  and 
distribute  goods  and  parcels  in  a  manner  which  involves  acts  ultra 
vires,  does  not  affect  the  question ;  nor,  if  they  do  so,  does  it  afford 
the  plaintiff  any  ground  of  action.  His  claim  is  for  their  refusal  to 
furnish  to  him  certain  claimed  facilities  upon  the  roads.  That 
refusal  does  not  involve  any  acts  or  exercise  of  powers  ultra  vires. 

Nor  does  the  fact  that  for  many  years  the  defendants  did  afford 
certain  facilities  to  separate  and  independent  carriers,  as  express 
companies,  confer  any  right  upon  them  or  impose  any  obligation, 
either  of  contract  or  duty,  upon  the  defendants  to  continue  the  same 
unchanged. 

Whatever  may  have  been  contemplated,  when  the  charters  for 
these  roads  were  granted,  as  to  the  parties  by  whom  and  the  mode 
in  which  the-  tracks  would  be  used  for  the  running  of  trains  or  car- 


78  CARRIERS   OF   GOODS. 

riages  upon  them,  and  the  manner  in  which  tolls  would  be  received, 
it  cannot  be  doubted  that  since  the  St.  of  1845,  c.  101,  the  direction 
of  the  use  of  the  roads,  and  the  control  of  all  carriages  upon  them ,  are 
exclusively  in  the  directors  of  the  corporations  owning  them.  It  is 
a  franchise  of  a  public  nature,  it  is  true;  and  the  directors  are  bound 
to  conduct  its  exercise  with  a  view  to  public  convenience.  But  they, 
and  not  the  individual  members  of  the  public,  are  intrusted  with 
the  discretion,  authority,  and  duty,  in  the  first  instance,  to  deter- 
mine what  the  ^public  convenience  requires.  They  are  subject,  in 
this  respect,  to  the  oversight  and  regulation  of  the  legislature.  It 
is  only  when  they  disregard  such  regulations  as  are  provided  by  law, 
or  required  by  a  reasonable  consideration  of  the  public  convenience 
and  purposes  of  their  charter,  that  individuals  are  entitled  to 
complain. 

The  plaintiff's  counsel  argues  that  it  is  unreasonable,  and  a  viola- 
tion of  the  legal  obligations  of  the  defendants,  to  make  any  discrimi- 
nation between  individuals;  or  to  refuse  to  the  plaintiff  privileges 
which  they  grant  to  any  other  party;  and  therefore  that  the  arrange- 
ment of  the  defendants  with  another  express  company,  by  whicli  the 
plaintiff  was  excluded  from  similar  facilities,  was  a  violation  of  his 
legal  rights.  Such  does  not  appear  to  be  the  rule  of  tlie  common 
law  as  held  in  Massachusetts.  Fitchburg  liailroad  r.  Gage,  12 
Gray,  393.  If  such  a  rule  has  been  established  by  the  St.  of  18G7, 
0.  339,  the  plaintiff's  case  is  not  maintained  upon  that  ground;  1st, 
because  the  contracts  with  other  parties  complained  of  were  made 
before  the  statute,  to  wit,  in  December,  1805,  for  one  year  from 
January  1,  1866,  and  renewed  only  for  one  year  from  January  1, 
1867,  — and  although  the  report  finds  that  during  the  time  from 
January  1,  1S66,  to  the  date  of  the  writ  November  15,  1»S71,  the 
plaintiff  "has  repeatedly  demanded  to  be  allowed  to  carry  on  his 
express  business  over  said  roads  as  formerly,"  it  does  not  appear 
that  any  such  demand  was  made  after  that  statute  took  effect  and 
before  the  arrangement  with  tlujse  other  parties  expired.  2d,  because 
the  declaration  does  not  charge  any  such  wrong.  The  allegation  is 
that  the  jtarties  with  whom  the  supposed  contracts  were  made  "  were 
and  are  only  the  paid  agents  of  said  defendant  corporations,  and 
not  the  proprietors  of  said  express  privileges,  and  tliat  tliey  liavo 
continued  as  such,  and  such  only,  to  the  date  of  this  writ;  and  that 
the  profits  accruing  from  said  fraudulent  arrangement  are  the  jtrop- 
erty  of  said  defendant  corporations."  The  wh(de  scope  and  drift  of 
the  declaration  is  to  charge  the  defendants  with  ''consjjiring  and 
illegally  contriving,"  by  means  of  pretended  contracts  with  otlier 
parties,  to  deprive  the  plaintiff  of  tlje  profits  of  his  exjjress  business 
in  order  to  operate  the  same  to  tht'ir  own  use.  The  gravamen  <»f  his 
complaint  then  is  not  that  the  defendants  have  refused  to  give  him 
"equal  terms,  facilities,  and  accommodations"  with  other  persons 
and  companies,  but  simply  that  they  have  refused  to  give  liim  such 


DUTY   TO   SERVE   THE   PUBLIC.  79 

facilities  as  he  requires,  for  his  special  business  as  carrier,  over 
their  roads.  His  claim  must  stand  upon  the  right  to  demand  such 
facilities  independently  of  any  enjoyment  of  like  facilities  by  others. 
As  an  absolute  right  this  cannot  be  maintained. 

The  plaintiff  contends  that  the  "  parcel  department "  which  the 
defendants  have  established,  to  the  exclusion  of  the  plaintiff  and 
others  desiring  to  make  like  arrangements,  is  in  contravention  of 
the  equality  required  by  the  statute,  as  much  as  if  it  were  conducted 
in  the  interest  of  a  third  party.  But  we  think  the  statute  was 
intended  to  apply  to  the  dealings  of  the  railroad  corporation  with 
the  public,  and  not  to  the  mode  in  which  it  should  arrange  and 
conduct  the  different  branches  of  its  business  as  carrier.  All  the 
plaintiff  can  demand  is  that,  in  each  of  those  branches,  he  shall  have 
equal  terms  with  other  persons  and  companies. 

The  report  finds  that  when  the  plaintiff  demanded  to  be  allowed 
to  carry  on  his  express  business  over  said  roads  as  formerly,  "  there 
was  sufficient  accommodation  in  the  defendants'  baggage  cars  for 
the  plaintiff  as  well  as  other  occupants  of  said  cars."  But  there  was 
no  refusal  to  carry  the  j)laintiff  and  his  freight  upon  the  same  terms 
and  in  the  same  manner  as  the  defendants  performed  like  services 
for  other  persons  and  companies.  It  was  a  refusal  only  to  permit 
the  plaintiff  to  occupy  a  portion  of  the  space  in  the  cars  and  stations 
in  the  same  manner  and  for  the  same  purposes  as  the  defendants 
themselves  used  and  occupied  them,  paying  therefor,  and  for  the 
required  transportation,  some  special  rate  which  could  not  well  be 
adjusted  otherwise  than  by  special  agreement. 

The  plaintiff  fails  to  make  out  a  legal  cause  of  action,  and  the 

Judgment  must  be  for  the  defendants^ 


ATCHISON,  TOPEKA   &   SANTE    Yt    E.    CO.    v.   DENVER 
&  NEW   ORLEANS   R.    CO. 

110  U.  S.  667.     1884 

This  was  a  bill  in  equity  filed  by  the  Denver  &  New  Orleans  Rail- 
road Co.,  a  Colorado  corporation  owning  and  operating  a  railroad  in 
that  State,  between  Denver  and  Pueblo,  a  distance  of  about  one 
hundred  and  twenty-five  miles,  against  the  Atchison  and  Topeka 
&  Santa  Ee  Railroad  Company,  a  Kansas  corporation,  owning  and 
operating  a  railroad  in  that  State  from  the  Missouri  River,  at  Kansas 
City,  westerly  to  the  Colorado  State  line,  and  also  operating  from 
there,  under  a  lease,  a  road  in  Colorado  from  the  State  line  to 
Pueblo,  built  by  the  Pueblo  &  Arkansas  Valley  Railroad  Company, 

1  Ace.  :  Express  Cases,  117  U.  S.  1.  Contra:  Xew  England  Exp.  Co.  v.  Maine 
Cent.  R.  Co.,  57  Me.  188  ;  McDuffee  v.  Portland,  &c.  R.,  52  N.  H.  430. 


80  CAKRIERS   OF   GOODS. 

—  a  Colorado  corporation.  Tlie  two  roads  so  operated  by  the 
Atchison,  Topeka  &  Santa  Fe  Company  formed  a  continuous  line 
of  communication  from  Kansas  City  to  Pueblo,  about  six  hundred 
and  thirty-four  miles.  The  general  purpose  of  the  suit  was  to  com- 
pel the  Atchison,  Topeka  &  Santa  Fe  Company  to  unite  with  tlie 
Denver  &  New  Orleans  Company  in  forming  a  through  line  of  rail- 
road transportation  to  and  from  Denver  over  the  Denver  &  New 
Orleans  road  with  all  the  privileges  as  to  exchange  of  business,  divi- 
sion of  rates,  sale  of  tickets,  issue  of  bills  of  lading,  checking  of 
baggage  and  interchange  of  cars,  that  were  or  might  be  customary 
with  connecting  roads,  or  that  were  or  might  be  granted  to  the 
Denver  &  Rio  Grande  Kailroad  Company,  another  Colorado  corpora- 
tion, also  owning  and  operating  a  road  parallel  to  that  of  the  Denver 
&  New  Orleans  Company  between  Denver  and  Pueblo,  or  to  any 
other  railroad  company  competing  with  the  Denver  &  New  Orleans 
for  Denver  business. 

[In  1879  the  Atchison,  Topeka  &  Santa  Fe  Company  made  an 
arrangement  with  the  Denver  &  Rio  Grande  Company  for  connec- 
tions between  Pueblo  and  Denver,  with  division  of  rates  as  to  joint 
business.] 

In  1882  the  Denver  &  Xew  Orleans  Company  completed  its  road 
between  Denver  and  Pueblo,  and  connected  its  track  with  that  of  the 
Atchison,  Topeka  &  Santa  F^,  in  Pueblo,  twelve  or  fifteen  hundred 
feet  easterly  from  the  junction  of  the  Denver  &  Rio  Grande  and 
about  three-quarters  of  a  mile  from  the  union  depot,  at  which  the 
Atchison,  Topeka  &  Santa  Fe  and  the  Denver  &  Rio  Grande  inter- 
change their  business,  and  where  each  stopped  its  trains  regularly 
to  take  on  and  let  off  passengers  and  receive  and  deliver  freight. 
The  Denver  &  New  Orleans  Company  erected  at  its  junction  with 
the  Atchison,  Topeka  &  Santa  Fe  platforms  and  other  accommoda- 
tions for  the  interchange  of  business,  and  before  this  suit  was  begun 
the  general  superintendent  of  the  Denver  »&  New  Orleans  Comjiany 
made  a  request  in  writing  of  the  general  manager  of  the  Atchison, 
Topeka  &  Santa  ¥A  [that  through  bills  of  lading  be  given  over  the 
two  roads,  and  that  the  Atchison,  Topeka  &  Santa  Y6  road  deliver 
cars  to  the  Denver  &  New  Orleans  road  at  the  junction  of  the  two 
roa<ls;  also  that  tickets  be  placed  on  sale  over  the  two  roads,  and  a 
system  of  through  cliecking  of  baggage  be  adopted  in  the  method 
usual  l)etween  roa<ls  having  a  joint  running  arrangement]. 

This  request  was  refused,  and  the  Atfhison,  T()i)eka  &,  Santa  F^ 
Company  continued  its  through  business  with  the  Denver  &  Rio 
Grande  as  before,  but  declined  to  receive  or  deliver  freight  or  jms- 
sengers  at  the  junction  of  tlie  Denver  &  New  Orleans  road,  or  to  give 
or  take  through  bills  of  l;iding,  or  to  sell  or  receive  thrf)Ugh  tickets, 
or  to  check  baggage  over  that  line.  All  passengers  or  freight  coming 
from  or  destined  for  that  line  were  taken  or  delivered  at  the  regular 
depot  of   the  Atchison,  Topeka  &    Santa  F('  Coni]tany  in   Pueblo, 


DUTY  TO   SERVE   THE   PUBLIC.  81 

and  the  prices  charged  were  according  to  the  regular  rates  to  and 
from  that  point,  which  were  more  than  the  Atchison,  Topeka  &  Santa 
Fe  received  on  a  division  of  through  rates  to  and  from  Denver  under 
its  arrangement  with  the  Denver  &  Rio  Grande  Company. 

]\Er.  Chief  Justice  Waite 

At  common  law,  a  carrier  is  not  bound  to  carry  except  on  his 
own  line,  and  we  think  it  quite  clear  that  if  he  contracts  to  go  be- 
yond, he  may,  in  the  absence  of  statutory  regulations  to  the  contrary, 
determine  for  himself  what  agencies  he  will  employ.  His  contract 
is  equivalent  to  an  extension  of  his  line  for  the  purpose  of  the  con- 
tract, and  if  he  holds  himself  out  as  a  carrier  beyond  the  line,  so  that 
he  may  be  required  to  carry  in  that  way  for  all  alike,  he  may,  never- 
theless, confine  himself  in  carrying  to  the  particular  route  he  chooses 
to  use.  He  puts  himself  in  no  worse  position,  by  extending  his  route 
with  the  help  of  others,  than  he  would  occupy  if  the  means  of  trans- 
portation employed  were  all  his  own.  He  certainly  may  select  his 
own  agencies  and  his  own  associates  for  doing  his  own  work. 

The  Atchison,  Topeka  &  Santa  Fe  Company,  as  the  lessee  of 
the  Pueblo  &  Arkansas  Valley  Railroad,  has  the  statutory  right  to 
establish  its  own  stations  and  to  regulate  the  time  and  manner  in 
which  it  will  carry  persons  and  property  and  the  price  to  be  paid 
therefor.  As  to  all  these  matters,  it  is  undoubtedly  subject  to  the 
power  of  legislative  regulation,  but  in  the  absence  of  regulation  it 
owes  only  such  duties  to  the  public,  or  to  individuals,  associations, 
or  corporations,  as  the  common  law,  or  some  custom  having  the 
force  of  law,  has  established  for  the  government  of  those  in  its  con- 
dition. As  has  already  been  shown,  the  Constitution  of  Colorado 
gave  to  every  railroad  company  in  the  State  the  right  to  a  mechani- 
cal union  of  its  road  with  that  of  any  other  company  in  the  State, 
but  no  more.  The  legislature  has  not  seen  fit  to  extend  this  right, 
as  it  undoubtedly  may,  and  consequently  the  Denver  &  New  Orleans 
Company  comes  to  the  Atchison,  Topeka  &  Santa  Fe  Company  just 
as  any  other  customer  does,  and  with  no  more  rights.  It  has  estab- 
lished its  junction  and  provided  itself  with  the  means  of  transacting 
its  business  at  that  place,  but,  as  yet,  it  has  no  legislative  autliority 
to  compel  the  other  company  to  adopt  that  station  or  to  establish  an 
agency  to  do  business  there.  So  far  as  statutory  regulations  are 
concerned,  if  it  wishes  to  use  the  Atchison,  Topeka  &  Santa  Fe 
road  for  business,  it  must  go  to  the  place  where  that  company  takes 
on  and  lets  off  passengers  or  property  for  others.  It  has  as  a  rail- 
road company  no  statutory  or  constitutional  privileges  in  this  partic- 
ular over  other  persons,  associations,  or  corporations.  It  saw  fit  to 
establish  its  junction  at  a  place  away  from  the  station  which  the 
Atchison,  Topeka  &  Santa  Fe  Company  had,  in  the  exercise  of  its 
legal  discretion,  located  for  its  own  convenience  and  that  of  the 
public.  It  does  not  now  ask  to  enter  that  station  with  its  track  or 
to  interchange  business  at  that  place,  but  to  compel  the  Atchison, 

6 


82  CARRIERS   OF   GOODS. 

Topeka  &  Santa  Fe  Company  to  stop  at  its  station  and  transact  a 
connecting  business  there.  No  statute  requires  that  connected  roads 
shall  adopt  joint  stations,  or  that  one  railroad  company  shall  stop  at 
or  make  use  of  the  station  of  another.  Each  company  in  the  State 
has  a  legal  right  to  locate  its  own  stations,  and,  so  far  as  statutory 
regulations  are  concerned,  it  is  not  required  to  use  any  other. 

A  railroad  company  is  prohibited,  both  by  the  common  law  and 
b}'  the  Constitution  of  Colorado,  from  discriminating  unreasonably 
in  favor  of  or  against  another  company  seeking  to  do  business  on  its 
road;  but  that  does  not  necessarily  imply  that  it  must  stop  at  the 
junction  of  one  and  interchange  business  there,  because  it  has  estab- 
lished joint  depot  accommodations,  and  provided  facilities  for  doing 
a  connecting  business  with  another  company  at  another  place.  A 
station  may  be  established  for  the  special  accommodation  of  a  par- 
ticular customer;  but  we  have  never  heard  it  claimed  that  every 
other  customer  could,  by  a  suit  in  equity,  in  the  absence  of  a  statu- 
tory or  contract  right,  compel  the  company  to  establish  a  like  station 
for  his  special  accommodation  at  some  other  place.  Such  matters 
are,  and  always  have  been,  proper  subjects  for  legislative  considera- 
tion, unless  prevented  by  some  charter  contract;  but,  as  a  general 
rule,  remedies  for  injustice  of  that  kind  can  only  be  obtained  from 
the  legislature.  A  court  of  chancery  is  not  any  more  than  is  a  court 
of  law,  clothed  with  legislative  power.  It  may  enforce,  in  its  own 
appropriate  way,  the  specific  performance  of  an  existing  legal  obli- 
gation arising  out  of  contract,  law,  or  usage,  but  it  cannot  create  the 
obligation. 

In  the  present  case,  the  Atchison,  Topeka  &  Santa  Fe  and  the 
Denver  &  Rio  Grande  Companies  formed  their  business  connection 
and  established  their  junction  or  joint  station  long  before  the  Denver 
&  New  Orleans  road  was  built.  The  Denver  &  New  Orleans  Com- 
pany saw  fit  to  make  its  junction  with  tlie  Atchison,  Topeka  & 
Santa  Ft?  Company  at  a  ditferent  place.  Under  these  circumstances, 
to  hold  that,  if  the  Atchison,  Topeka  &  Santa  F^  continued  to  stop 
at  its  old  station,  after  the  Denver  &  New  Orleans  was  built,  a  re- 
f u.sal  to  stop  at  the  junction  of  the  Denver  &  New  ( )rlcans  was  an 
unreasonable  discrimination  as  to  facilities  in  favor  of  the  Denver 
&  Kio  Grande  Company,  and  against  the  Denver  &  New  Orleans, 
would  be  in  effect  to  declare  that  every  railroad  company  whioh 
forces  a  connection  of  its  road  with  that  of  another  company  has  a 
rif,'lit.  under  tlie  Constitution  or  at  the  common  law,  to  require  the 
eompany  with  whifh  it  connects  to  do  a  connecting  busim-ss  at  the 
junction,  if  it  does  a  similar  Imsiness  with  any  other  company  under 
any  other  circumstances.  Such,  we  think,  is  not  the  law.  It  may 
be  made  so  by  the  legi.slative  de])artment  of  the  government,  but  it 
does  not  follow,  as  a  m-ccissary  consequence,  from  the  constitutional 
rifs'ht  of  a  mechanical  union  of  tracks,  or  tlie  constitutional  jirohibi- 
tion  against  undue  or  unren^i'ii'iliL-  ilisn  iiuiuMf  !c,im  in  r.icilif  ii's. 


DUTY   TO   SERVE   THE    PUBLIC.  83 

This  necessarily  disposes  of  the  question  of  a  continuous  business, 
or  a  through  line  for  passengers  or  freight,  including  through  tickets, 
through  bills  of  lading,  through  checking  of  baggage,  and  the  like. 
Such  a  business  does  not  necessarily  follow  from  a  connection  of 
tracks.  The  connection  may  enable  the  companies  to  do  such  a 
business  conveniently  when  it  is  established,  but  it  does  not  of 
itself  establish  the  business.  The  legislature  cannot  take  away  the 
right  to  a  physical  union  of  two  roads,  but  whether  a  connecting 
business  shall  be  done  over  them  after  the  union  is  made  depends  on 
legislative  regulation,  or  contract  obligation.  An  interchange  of 
cars,  or  the  hauling  by  one  company  of  the  cars  of  the  other,  implies 
a  stop  at  the  junction  to  make  the  exchange  or  to  take  the  cars.  If 
there  need  be  no  stoj),  there  need  be  no  exchange  or  taking  on  of  cars. 

The  only  remaining  questions  are  as  to  the  obligation  of  the 
Atchison,  Topeka  &  Santa  Fe  Company  to  carry  for  the  Denver 
&  ISTew  Orleans  when  passengers  go  to  or  freight  is  delivered  at  the 
regular  stations,  and  the  prices  to  be  charged.  As  to  the  obligation 
to  carry,  there  is  no  dispute,  and  we  do  not  understand  it  to  be 
claimed  that  carriage  has  ever  been  refused  when  applied  for  at  the 
proper  place.  The  controversy,  and  the  only  controversy,  is  about 
the  place  and  the  price. 

That  the  price  must  be  reasonable  is  conceded,  and  it  is  no  doubt 
true  that  in  determining  what  is  reasonable  the  prices  charged  for 
business  coming  from  or  going  to  other  roads  connecting  at  Pueblo 
may  be  taken  into  consideration.  But  the  relation  of  the  Denver  & 
New  Orleans  Company  to  the  Atchison,  Topeka  &  Santa  Fe  is  that 
of  a  Pueblo  customer,  and  it  does  not  necessarily  follow  that  the 
price  which  the  Atchison,  Topeka  &  Santa  Fe  gets  for  transporta- 
tion to  and  from  Pueblo,  on  a  division  of  through  rates  among  the 
component  companies  of  a  through  line  to  Denver,  must  settle  the 
Pueblo  local  rates.  It  may  be  that  the  local  rates  to  and  from 
Pueblo  are  too  high,  and  that  they  ought  to  be  reduced,  but  that  is 
an  entirely  different  question  from  a  division  of  through  rates. 
There  is  no  complaint  of  a  discrimination  against  the  Denver  & 
New  Orleans  Company  in  respect  to  the  regular  Pueblo  rates; 
neither  is  there  anything  except  the  through  rates  to  show  that  the 
local  rates  are  too  high.  The  bill  does  not  seek  to  reduce  the  local 
rates,  but  only  to  get  this  company  put  into  the  same  position  as 
the  Denver  &  Rio  Grande  on  a  division  of  through  rates.  This 
cannot  be  done  until  it  is  shown  that  the  relative  situations  of  the 
two  companies  with  the  Atchison,  Topeka  &  Santa  Fe,  both  as  to 
the  kind  of  service  and  as  to  the  conditions  under  which  it  is  to  be 
performed,  are  substantially  the  same,  so  that  what  is  reasonable 
for  one  must  necessarily  be  reasonable  for  the  other.  When  a  busi- 
ness connection  shall  be  established  between  the  Denver  &  New 
Orleans  Company  and  the  Atchison,  Topeka  &  Santa  Fe  at  their 
junction,   and  a  continuous  line  formed,   different  questions   may 


84  CARKIEUS   OF   GOODS. 

arise;  but  so  long  as  the  situation  of  the  parties  continues  as  it  is 
now,  we  cannot  say  that,  as  a  matter  of  law,  the  prices  charged  by 
the  Atchison,  Topi-ka  &  Santa  Fe,  tor  the  transportation  of  jiersons 
ami  property  coming  from  or  going  to  the  Denver  &  New  Orleans, 
must  necessarily  be  the  same  as  are  fixed  for  the  continuous  line 
over  the  Denver  »S:  Eio  Grande. 

All  the  American  cases  to  which  our  attention  has  been  called  by 
counsel  relate  either  to  what  amounts  to  undue  discrimination  be- 
tween the  customers  of  a  railroad  company,  or  to  the  power  of  a 
court  of  chancery  to  interfere,  if  there  is  such  a  discrimination. 
None  of  them  hold  that,  in  the  absence  of  statutory  direction,  or  a 
specific  contract,  a  company  having  the  power  to  locate  its  own 
stojjping-places  can  be  required  by  a  court  of  equity  to  stop  at 
another  railroad  junction  and  interchange  business,  or  that  it  must, 
under  all  circumstances,  give  one  connecting  road  the  same  facilities 
and  the  same  rates  that  it  does  to  another  with  which  it  has  entered 
into  S})ecial  contract  relations  for  a  continuous  through  line  and 
arrangetl  facilities  accordingly.  The  cases  are  all  instructive  in 
their  analogies,  but  their  facts  are  different  from  those  we  have  now 
to  consider. 

We  have  not  referred  specially  to  the  tripartite  agreement  or  its 
provisions,  because,  in  our  opinion,  it  has  nothing  to  do  with  this 
case  as  it  is  now  presented.  The  question  here  is  whether  the 
Denver  &  New  Orleans  Company  would  have  the  right  to  the  relief 
it  asks  if  there  were  no  such  contract,  not  whether  the  contract,  if 
it  exists,  will  be  a  bar  to  such  a  riglit.  The  real  question  in  the 
case,  as  it  now  comes  before  us,  is  wliether  the  relief  required  is 
legislative  in  its  character  or  judicial.  We  think  it  is  legislative, 
and  that  upon  the  existing  facts  a  court  of  chancery  can  afford  no 
remedy. 

The  decree  of  the  Circuit  Court  is  reversed,  and  the  cause  remanded 
with  direction  to  dismiss  the  bill  without  prejudice. 


STATE,  EX  iu:l.   '•.  ('IXriNXATI.  in.  II.  C<X 

47  Ohio  St.  130.     1890. 

]'.i£.M)i!fnv,  .r.  These  actions  are  brought  under  tlic  lourtli  clause 
of  880.  C7G1,  Revised  Statutes,  which  authorize  an  action  <»f  quo 
warranto  to  be  brought  against  a  corporation  "when  it  has  misused 
a  fninchise,  i>rivilego,  or  right  conferred  upon  it  l)y  law,  or  when  it 
claims  or  liold.s  by  contract  or  otherwise,  or  has  exercised  a  fran- 
chise, jiriviJiL'e.  or  right  in  contravention  of  law." 


DUTY   TO   SERVE   THE    PUBLIC.  85 

The  petitions  charge,  among  other  things,  that  the  defendants 
misused  their  corporate  powers  and  franchises  by  discriminating  in 
their  rates  of  freight  in  favor  of  certain  refiners  of  petroleum  oil 
connected  with  the  Standard  Oil  Company,  by  charging  other 
shippers  of  like  products  unreasonable  rates,  by  arbitrarily  and 
suddenly  changing  the  same,  and  finally,  by  confederating  with  the 
favored  shippers  to  create  and  foster  a  monopoly  in  refined  oil,  to 
the  injury  of  other  refiners  and  the  public;  and  further,  that  the 
defendants  claimed  and  exercised,  in  contravention  of  law,  the  right 
to  charge,  for  shipping  oil  in  tank  cars,  a  lower  rate  of  freight  per 
hundred  pounds  than  they  charged  for  shipping  the  same  in  barrels, 
in  car-load  lots.  The  defendant,  by  answer,  among  other  matters, 
denied  charging  any  shippers  unreasonable  rates  of  freight,  or  that 
they  arbitrarily  or  suddenly  changed  such  rates,  and  denied  any 
confederacy  with  any  one  to  establish  a  monopoly. 

The  actions  were  referred  to  a  referee  to  take  the  evidence  and  to 
report  to  this  court  his  findings  of  fact  and  conclusions  of  law  there- 
from; all  which  has  been  done,  and  the  cases  are  before  us  upon 
this  report. 

To  the  report  of  the  referee  exceptions  were  filed  by  all  parties. 
The  defendants,  however,  do  not  now  insist  upon  their  exceptions 
to  the  finding  of  the  referee  in  so  far  as  it  relates  to  the  facts; 
indeed,  it  is  difficult  to  conceive  any  grounds  for  their  doing  so,  for 
these  findings  are  mainly  based  upon  the  testimony  of  the  officers 
and  agents  of  the  railroad  companies. 

That  the  Cincinnati,  Washington  &  Baltimore  Railway  Company 
did  discriminate  in  its  rates  for  freight  on  petroleum  oil  in  favor  of 
the  Camden  Consolidated  Oil  Company,  and  that  the  Cincinnati, 
New  Orleans  &  Texas  Pacific  Eailway  Company  did  the  same  in  favor 
of  the  Chess-Carly  Company,  is  shown  by  the  finding  of  the  referee, 
which  is  clearly  sustained  by  the  evidence.  That  these  discriminat- 
ing rates  were  in  some  instances  strikingly  excessive,  tended  to  foster 
a  monopoly,  tended  to  injure  the  competitors  of  the  favored  shippers 
and  were  in  many  instances  prohibitory,  actually  excluding  these 
competitors  from  extensive  and  valuable  markets  for  their  oil,  giving 
to  the  favored  shippers  absolute  control  thereof,  is  established  beyond 
any  serious  controversy.  The  justification  interposed  is  that  this 
was  not  done  pursuant  to  any  confederacy  with  the  favored  shipper 
or  with  any  purpose  to  inflict  injury  on  their  competitors,  but  in 
order  that  the  railroad  companies  might  secure  freight  that  would 
otherwise  have  been  lost  to  them.  This  we  do  not  think  sufficient. 
We  are  not  unmindful  of  the  difficulties  that  stand  in  the  way  of 
prescribing  a  line  of  duty  to  a  railway  company,  nor  do  we  under- 
take to  say  they  may  not  pursue  their  legitimate  objects,  and  shape 
their  policy  to  secure  benefits  to  themselves,  though  it  may  press 
severely  upon  the  interests  of  others;  but  we  do  hold  that  they 


86  CARRIERS   OF   GOODS. 

cannot  be  permitted  to  foster  or  create  a  monopoly,  by  giving  to  a 
favored  shipper  a  discriminating  rate  of  freiglit.  As  common  car- 
riers, their  duty  is  to  carry,  indifferently,  for  all  who  may  apply, 
and  in  the  order  inwliich  the  application  is  made  and  upon  the  same 
terms;  and  the  assumption  of  a  right  to  make  discriminations  in 
rates  for  freight,  such  as  was  claimed  and  exercised  by  the  defend- 
ants in  this  case,  on  the  ground  that  it  thereby  secured  freight  that 
it  would  otherwise  lose,  is  a  misuse  of  the  rights  and  privileges  con- 
ferred upon  it  by  law.  A  full  and  complete  discussion  of  the  prin- 
ciples and  a  thorough  collection  of  the  authorities,  bearing  upon  the 
duties  of  railroad  companies  toward  tlieir  customers,  is  to  be  found 
in  the  opinion  of  Atherton,  J.,  in  the  case  of  Scofield  r.  Railway, 
43  (Jhio  8t.  o71,  to  wliich  nothing  need  be  now  added. 

It  appears  that  of  the  two  methods  of  shipping  oil,  that  by  the  bar- 
rel in  car-load  lots  and  that  in  tank  cars,  the  first  only  was  available 
to  George  Rice  and  the  other  refiners  of  petroleum  oil  at  IMarietta, 
Ohio,  as  they  owned  no  tank  cars,  nor  did  tlie  defendants  own  or 
undertake  to  provide  any ;  but  that  both  methods  were  open  to  the 
Camden  Consolidated  Oil  Company  and  the  Chess-Carly  Company, 
by  reason  of  their  ownership  of  tank  cars,  and  that  the  rate  per  bar- 
rel in  tank  cars  was  very  much  lower  than  in  barrel  i)ackages  in  box 
cars;  that,  in  fact,  the  Cincinnati,  Washington  &  Baltimore  Rail- 
way Company,  after  allowing  the  Camden  Consolidated  ( )il  Company 
a  rebate,  and  allowing  the  Baltimore  &  Ohio  Railway  Company  for 
switching  cars,  received  from  the  Camden  Consolidated  Oil  Company 
only  about  one  half  the  open  rates  it  charged  tlie  Marietta  refiners, 
and  that  both  railroad  companies  claimed  the  right  to  make  different 
rates,  based  upon  the  different  methods  of  shipping  oil,  and  the  fact 
of  the  ownership  by  shippers  of  the  tank  cars  used  by  them.  It  was 
the  duty  of  the  defendants  to  furnish  suitable  vehicles  for  transport- 
ing freight  offered  to  them  for  that  i)uri)ose,  and  to  offer  equal  terms 
to  all  shijjpers.  A  railroad  is  an  improved  highway;  the  pul)lic  are 
equally  entitled  to  its  use;  it  must  i)rovide  equal  accommodation  for 
all  upon  the  same  terms.  The  fact  tliat  one  shi])per  may  be  jjro- 
vided  with  vehicles  of  his  own  entitles  him  to  no  advantage  over  his 
competitor  not  so  jtrovided.  The  true  rule  is  announced  by  the 
Interstate  Commerce  Commission,  in  the  rejtortof  the  case  of  George 
Rice  V.  The  Louisville  &,  Nashville  Railroad  Company  et  dl.  "Tlie 
fact  that  the  owner  supplies  the  rolling  stock  when  his  oil  is  shipped 
in  tanks,  in  our  oi)inion,  is  entitled  to  little  weight  when  rates  are 
under  consideration.  It  is  ])roperly  the  business  of  railroad  com- 
panies to  supply  to  tlieir  customers  suitable  veliicles  of  transjiorta- 
tion  (Railroad  Co.  v.  Pratt,  22  Wall.  123),  and  then  offer  their  use 
to  everybody  impartially."  Rage  50  of  the  report  of  tlie  case.  No 
doubt  a  shipper  who  owns  cars  may  be  paid  a  reasonable  cojii])ensa- 
tion  for  the  use,  so  that  the  compensation  is  not  made  a  cover  for 
discriminatintr  rates,  or  other  advantages  to  .such  owner  as  a  shipper. 


DUTY   TO   SERVE   THE   PUBLIC.  87 

Nor  is  there  any  valid  objection  to  such  owner  using  them  exchi- 
sively,  as  long  as  the  carrier  provides  equal  accommodations  to  its 
other  customers.  It  may  be  claimed  that  if  a  railroad  company 
permit  all  shippers  indifferently,  and  upon  equal  terms,  to  provide 
cars  suitable  for  their  business,  and  to  use  them  exclusively,  no 
discrimination  is  made.  This  may  be  theoretically  true,  but  it  is 
not  so  in  its  application  to  the  actual  state  of  the  business  of  the 
country;  for  a  very  large  portion  of  the  customers  of  a  railroad 
have  not  a  volume  of  business  large  enough  to  warrant  equipping 
themselves  with  cars,  and  might  be  put  at  a  ruinous  disadvantage  in 
the  attempt  to  compete  with  more  extensive  establishments.  Aside 
from  this,  however,  a  shipper  is  not  bound  to  provide  a  car;  the 
duty  of  providing  suitable  facilities  for  its  customers  rests  upon  the 
railroad  company,  and  if,  instead  of  providing  sufficient  and  suit- 
able cars  itself,  this  is  done  by  certain  of  its  customers  even  for 
their  own  convenience,  yet  the  cars  thus  provided  are  to  be  regarded 
as  part  of  the  equipments  of  the  road.  It  being  the  duty  of  a  rail- 
road company  to  transport  freight  for  all  persons  indifferently,  and 
in  the  order  in  which  its  transportation  is  applied  for,  it  cannot  be 
permitted  to  suffer  freight  cars  to  be  placed  upon  its  track  by  any 
customer  for  his  private  use,  except  upon  the  condition  that,  if  it 
does  not  provide  other  cars  sufficient  to  transport  the  freight  of  other 
customers  in  the  order  application  is  made,  they  may  be  used  for 
that  purpose.  Were  this  not  so,  a  mode  of  discrimination,  fatal  to 
all  successful  competition  by  small  establishments  and  operators  with 
large  and  more  opulent  ones,  could  be  successfully  adopted  and 
practised  at  the  will  of  the  railroad  company  and  the  favored 
shipper. 

The  advantages,  if  any,  to  the  carrier,  presented  by  the  tank- 
car  method  of  transporting  oil,  over  that  by  barrels  in  box  cars  in 
car-load  lots,  are  not  sufficient  to  justify  any  substantial  difference 
in  the  rate  of  freight  for  oil  transported  in  that  way;  but  if  there 
were  any  such  advantages,  as  it  is  the  duty  of  the  carrier  to  furnish 
proper  vehicles  for  transporting  it,  if  it  failed  in  this  duty  it  could 
not  in  justice  avail  itself  of  its  own  neglect  as  a  ground  of  discrimi- 
nation. It  must  either  provide  tank  cars  for  all  its  customers 
alike,  or  give  such  rates  of  freight  in  barrel  packages,  by  the  car- 
load, as  will  place  its  customers  using  that  method  on  an  equal 
footing  with  its  customers  adopting  the  other  method. 

Judgynent  ousting  defendants  from  the  right  to  make  or  charge  a 
rate  of  freight  per  hundred  2'>ounds  for  transjjorting  oil  in  iron  tank 
cars,  substantially  lower  than  for  transporting  it  in  barrels ,  in  car- 
load lots. 


88  CAKKIERS   OF   GOODS. 

b.    For  a  reasonable  compensation. 

BASTARD   V.    BASTARD. 
King's  Bench.    2  Shower,  81.     1679. 

Case  against  the  defendant  as  a  common  carrier,  for  a  box  deliv- 
ered to  him  to  be  carried  to  B.  and  lost  by  negligence. 

Williams  moved  in  arrest  of  judgment,  for  that  there  was  no  par- 
ticular sum  mentioned  to  be  paid  or  promised  for  hire,  but  only  j>ro 
mercede  rationahUi ;  resolved  well  enough,  and  judgment  given  pro 
plaintiff;  for  perhaps  there  was  no  particular  agreement,  and  then 
the  carrier  might  have  a  quantum  meruit  for  his  hire,  and  he  is 
therefore  as  chargeable  for  the  loss  of  the  goods  in  the  one  case 
as  the  other. 


RAGAN  &  BUFFET   v.    AIKEN. 
9  Lea  (Teuu.),  G09.     1882. 

COOPKK,   J.         ...••••••  • 

The  third  ground  of  demurrer  is  that  the  facts  stated  in  the  bill 
do  not  sliow  a  case  of  improper  discrimination  within  the  meaning 
of  the  franchises  under  which  the  defendant  is  operating  his  road. 
The  facts  are  that  the  defendant,  to  induce  merchants  in  Lee 
County,  Virginia,  and  Hancock  County,  Tennessee,  to  ship  over 
his  road,  instead  of  taking  a  different  route,  has  entered  into  a  con- 
tract with  them  not  to  charge  exceeding  15  cents  per  hundred 
pounds  on  their  goods.  And  the  question  is  wliether  the  defendant 
can  make  such  a  contract,  under  the  circumstances  stated. 

The  English  authorities  hold  that  at  common  law  the  common 
carrier  is  not  bound  to  carry  at  eriual  rates  f<.r  all  customers  in  like 
condition.  The  authorities  are  collected  in  ^McDuffee  r.  Tortland  cS: 
Rochester  Railroad,  52  N.  H.  430,  and  in  3  Am.  &  Eng.  R.  Cas.  G02. 
In  this  countrv,  the  courts  have  generally  held  otherwise,  and  that 
statutes  i)rohibiting  discrimination  are  merely  declaratory  of  the 
common  law.  Sinking  Fund  Cases,  9'J  U.  S.  17;  I^Iess.'nger  r. 
Pennsylvania  Railroad  Company,  3C  N.  J.  L.  407,  531.  Discrimi- 
nation in  rates  of  freight,  if  fair  and  reasonable,  and  founded  on 
grounds  consistent  witli  tlie  puldic  interest,  are  allowable.  Hersh 
V.  Northern,  etc.  Railroad  Company,  74  I'a.  St.  ISl;  Chicago,  etc. 
Railroad  Company  r.  I'eople,  07  111.  11;  Fitchlmrg  Railroad  Com- 
j>any  v.  Gagf,  I'J  Grny,  3'.)3.     'I'l"    inM.-'tani  iM,int  l..  every  freighter 


DUTY   TO    SERVE    THE    PUBLIC.  89 

is  that  the  charge  shall  be  reasonable,  and  a  right  of  action  will  not 
exist  in  favor  of  any  one  unless  it  be  shown  that  unreasonable  ine- 
quality had  been  made  to  his  detriment.  A  reasonable  price  paid 
by  such  a  party  is  not  made  iinreasonable  by  a  less  price  paid  by 
others.  Or,  as  said  by  Crompton,  J.,  to  the  plaintiff,  upon  the 
trial  of  such  a  suit :  "  The  charging  another  party  too  little  is  not 
charging  you  too  much."  Garten  v.  B.  &  E.  Eailroad  Company,  1 
B.  &  S.  112,  154,  165;  McDuffee  v.  Portland  &  Eochester  Kailroad, 
52  y.  H.  430.  In  determining  whether  a  company  has  given  undue 
preference  to  a  particular  person,  the  court  may  look  to  the  interests 
of  the  company:  Ransome  v.  Eastern  Counties  Eailway,  1  C.  B. 
N.  s.  437;  1  id.  135. 

In  other  words,  if  the  charge  on  the  goods  of  the  party  complain- 
ing is  reasonable,  and  such  as  the  company  would  be  required  to 
adhere  to  as  to  all  persons  in  like  condition,  it  may,  nevertheless, 
lower  the  charge  to  another  person  if  it  be  to  the  advantage  of  the 
company,  not  inconsistent  with  the  public  interest,  and  based  on  a 
sufficient  reason.  It  is  obvious  that  the  intention  of  the  defendant, 
in  this  instance,  was  not  to  discriminate  against  the  complainants  in 
favor  of  any  person  of  the  same  place,  and  in  the  same  condition. 
His  object  was  to  get  business  for  his  road  from  persons  at  a  dis- 
tance from  its  terminus,  which  otherwise  would  reach  their  destina- 
tion by  a  different  route.  Under  these  circumstances,  we  cannot  see 
that  the  contracts  complained  of  are  against  public  policy,  or  that 
the  complainants  have  been  damaged,  if  the  charges  on  their  goods 
were  reasonable.  The  bill  contains  no  allegation  that  the  charges 
made  against,  and  paid  by,  the  complainants  were  unreasonable. 
Without  such  an  averment  there  has  been  no  damage.  The  third 
ground  of  demurrer  was,   therefore,   well  taken. ^ 


CHICAGO,  BURLINGTON  &  QUINCY  R.  CO.  v.  IOWA. 
94  U.  S.  155.     1876. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of  Iowa. 

Mr.  Chief  Justice  Waite.  Railroad  companies  are  carriers  for 
hire.  They  are  incorporated  as  such,  and  given  extraordinary 
powers,  in  order  that  they  may  the  better  serve  the  public  in  that 
capacity.  They  are,  therefore,  engaged  in  a  public  employment 
affecting  the  public  interest,  and,  under  the  decision  in  Munn  v. 
Illinois,  94  U.  S.  113  [1],  subject  to  legislative  control  as  to  their 
rates  of  fare  and  freight,  unless  protected  by  their  charters. 

1  Ace:  Fitchburg  R.  Co.  v.  Gage,  12  Gray,  393  ;  Ex  parte  Bensou,  18  S.  C.  38  ; 
Johnson  v.  Pensacola,  etc.  E.  Co.,  16  Fla.  623. 


90  CARRIERS    OF   GOODS. 

The  Burlington  and  Missouri  Eiver  Eailroad  Conipnu}-,  the  bene- 
fit of  whose  charter  the  Chicago.  Burlington  and  Quincy  Kailroad 
Company  now  claims,  was  organized  under  the  general  corporation 
law  of  Iowa,  with  power  to  contract,  in  reference  to  its  business, 
the  same  as  private  individuals,  and  to  establish  by-laws  and  make 
all  rules  and  regulations  deemed  expedient  in  relation  to  its  affairs, 
but  being  subject,  nevertheless,  at  all  times  to  such  rules  and  regu- 
lations as  the  general  assembly  of  Iowa  might  from  time  to  time 
enact  and  provide.  This  is,  in  substance,  its  charter,  and  to  that 
extent  it  is  protected  as  by  a  contract;  for  it  is  now  too  late  to  con- 
tend that  the  charter  of  a  corporation  is  not  a  contract  within  the 
meaning  of  that  clause  in  the  Constitution  of  the  United  States 
which  prohibits  a  State  from  passing  any  law  impairing  the  obliga- 
tion of  a  contract.  Whatever  is  granted  is  secured  subject  only  to 
the  limitations  and  reservations  in  the  charter  or  in  the  laws  or 
constitutions  which  govern  it. 

This  company,  in  the  transactions  of  its  business,  has  the  same 
rights,  and  is  subject  to  the  same  control,  as  private  individuals 
under  the  same  circumstances.  It  must  carry  when  called  upon  to 
do  so,  and  can  charge  only  a  reasonable  sum  for  the  carriage.  In 
the  absence  of  any  legislative  regulation  ujton  the  subject,  the  courts 
must  decide  for  it,  as  they  do  for  private  persons,  when  contro- 
versies arise,  what  is  reasonable.  But  when  the  legislature  steps  in 
and  prescribes  a  maximum  of  charge,  it  operates  upon  this  corpora- 
tion the  same  as  it  does  upon  individuals  engaged  in  a  similar  busi- 
ness. It  was  witliin  the  power  of  the  company  to  call  u[)on  the 
legislature  to  fix  permanently  this  limit,  and  make  it  a  part  of  the 
charter;  and,  if  it  was  refused,  to  abstain  from  building  the  road 
and  establishing  the  contemi»lated  business.  If  that  had  been  done, 
the  cliarter  might  have  presented  a  contract  against  future  legisla- 
tive interference.  But  it  was  not;  and  the  company  invested  its 
capital,  relying  upon  the  good  faith  of  the  people  and  the  wisdom 
and  impartiality  of  legislators  for  protection  against  wrong  under 
the  form  of  legislative  regulation. 

It  is  a  matter  of  no  importance  tliat  the  power  <>f  regulation  now 
under  consideration  was  not  exercised  for  more  than  twenty  years 
after  this  company  was  organized.  A  i)0wer  of  government  which 
actually  exists  is  not  lost  by  non-user.  A  good  government  never 
puts  forth  its  extraordinary  i)0wers,  except  under  circumstances 
w'liifh  require  it.  Tliat  government  is  the  l)est  which,  wliile  ])cr- 
forming  all  its  duties,  interferes  the  least  witli  the  lawful  jjursuits 
of  its  i»cople. 

In  1091,  during  the  third  year  of  tlie  rrign  <>[  Willi.un  .'ind  Mary, 
Tarlianifnt  provided  for  the  regulation  of  the  ratfs  of  chargt'S  l)y 
common  carriers.  This  statute  remained  in  force,  with  some  amend- 
ment, until  1827,  when  it  was  repealed,  and  it  lias  never  been 
ro-enactcd.     Xo   one    sujijioses  that  the   jiowcr  to   restore  its  pro- 


DUTY   TO   SERVE   THE   PUBLIC.  91 

visions  has  been  lost.  A  change  of  circumstances  seemed  to  render 
such  a  regulation  no  longer  necessary,  and  it  was  abandoned  for  the 
time.  The  power  was  not  surrendered.  That  remains  for  future 
exercise,  when  required.  So  here,  the  power  of  regulation  existed 
from  the  beginning,  but  it  was  not  exercised  until  in  the  judgment 
of  the  body  politic  the  condition  of  things  was  such  as  to  render  it 
necessary  for  the  common  good. 

Neither  does  it  affect  the  case  that  before  the  power  was  exercised 
the  company  had  pledged  its  income  as  security  for  the  payment  of 
debts  incurred,  and  had  leased  its  road  to  a  tenant  that  relied  upon 
the  earnings  for  the  means  of  paying  the  agreed  rent.  The  com- 
pany could  not  grant  or  pledge  more  than  it  had  to  give.  After 
the  pledge  and  after  the  lease  the  property  remained  within  the 
jurisdiction  of  the  State,  and  continued  subject  to  the  same  govern- 
mental powers  that  existed  before. 

The  objection  that  the  statute  complained  of  is  void  because  it 
amounts  to  a  regulation  of  commerce  among  the  States,  has  been 
sufficiently  considered  in  the  case  of  Munn  v.  Illinois.  This  road, 
like  the  warehouse  in  that  case,  is  situated  within  the  limits  of  a 
single  State.  Its  business  is  carried  on  there,  and  its  regulation  is 
a  matter  of  domestic  concern.  It  is  employed  in  State  as  well  as  in 
interstate  commerce,  and,  until  Congress  acts,  the  State  must  be 
permitted  to  adopt  such  rules  and  regulations  as  may  be  necessary 
for  the  promotion  of  the  general  welfare  of  the  people  within  its 
own  jurisdiction,  even  though  in  so  doing  those  without  may  be 
indirectly  affected. 

It  remains  only  to  consider  whether  the  statute  is  in  conflict  with 
sec.  4,  art.  1,  of  the  Constitution  of  Iowa,  which  provides  that  "all 
laws  of  a  general  nature  shall  have  a  uniform  operation,"  and  that 
"the  general  assembly  shall  not  grant  to  any  citizen,  or  class  of 
citizens,  privileges  or  immunities  which,  upon  the  same  terms,  shall 
not  equally  belong  to  all  citizens." 

The  statute  divides  the  railroads  of  the  State  into  classes,  accord- 
ing to  business,  and  establishes  a  maximum  of  rates  for  each  of  the 
classes.  It  operates  uniformly  on  each  class,  and  this  is  all  the 
Constitution  requires.  The  Supreme  Court  of  the  State,  in  the  case 
of  McAunich  v.  M.  &  M.  Railroad  Co.,  20  Iowa,  343,  in  speaking  of 
legislation  as  a  class,  said,  "  These  laws  are  general  and  uniform, 
not  because  they  operate  upon  every  person  in  the  State ,  for  they  do 
not,  but  because  every  person  who  is  brought  within  the  relation 
and  circumstances  provided  for  is  affected  by  law.  They  are  general 
and  uniform  in  their  operation  upon  all  persons  in  the  like  situa- 
tion, and  the  fact  of  their  being  general  and  uniform  is  not  affected 
by  the  number  of  persons  within  the  scope  of  their  operation." 
This  act  does  not  grant  to  any  railroad  company  privileges  or 
immunities  which,  upon  the  same  terms,  do  not  equally  belong  to 
every  other  railroad  company.      Whenever  a   company  comes  into 


92  CARRIERS   OF   GOODS. 

any  class,  it  has  all  the  ''privileges  and  immunities"  that  have 
been  granted  by  the  statute  to  anj'  other  company  in  that  class. 

It  is  very  clear  tliat  a  uniform  rate  of  charges  for  all  railroad  com- 
panies in  the  State  might  operate  unjustly  upon  some.  It  was 
proper,  therefore,  to  provide  in  some  way  for  an  adaptation  of  the 
rates  to  the  circumstances  of  the  different  roads;  and  the  general 
assembly,  in  the  exercise  of  its  legislative  discretion,  has  seen  fit  to 
do  this  by  a  system  of  classification.  Whether  this  was  the  best 
that  could  have  been  done  is  not  for  us  to  decide.  Our  province  is 
only  to  determine  whether  it  could  be  done  at  all,  and  under  any 
circumstances.  If  it  could,  the  legislature  must  decide  for  itself, 
subject  to  no  control  from  us,  whether  the  common  good  requires 
that  it  should  be  done.  Decree  affirmed. 

Mr.  Justice  Field  and  Mr.  Justice  Stkoxg  dissented. 


REAGAX   V.    FARMERS'   LOAX  &.  TRUST   CO. 

154  U.  S.  302.     1804. 

Mr.  Justice  Brewer 

It  appears  from  the  bill  that,  in  pursuance  of  the  powers  given 
to  it  by  this  act,  the  State  commission  [Reagan  ct  a/.]  has  made 
a  body  of  rates  for  fares  and  freights.  This  body  of  rates,  as  a 
whole,  is  challenged  by  the  plaintiff  [defendant  in  error,  trustee 
under  a  railroad  trust  deedj  as  unreasonable,  unjust,  and  working  a 
destruction  of  its  rights  of  property.  The  defendant  denies  the 
power  of  the  court  to  entertain  an  inquiry  into  that  matter,  insist- 
ing that  the  fixing  of  rates  for  carriage  by  a  public  carrier  is  a 
matter  wliolly  within  the  power  of  the  legislative  department  of 
the  governmont  and  beyond  examination  by  the  courts. 

It  is  doul)th'SS  true,  as  a  general  proi>osition,  that  the  formation 
of  a  tariff  of  charges  for  the  transportation  l)y  a  common  carrier  of 
persons  or  property  is  a  legislative  or  administrative  rather  than 
a  judicial  function.  Vet  it  has  always  been  recognized  that,  if  a 
carrier  attem])tod  to  charge  a  shipper  an  unreasonable  sum,  the 
courts  had  jurisdiction  to  inquire  into  that  matter  and  to  award  to 
the  shipper  any  amount  exacted  from  him  in  excess  of  a  reasonable 
rate;  and  also  in  a  reverse  case  to  render  judgment  in  favor  of  the 
carrifT  for  the  amount  found  to  Ije  a  reasonable  charge.  The  ]irov- 
iwdc  of  the  courts  is  not  changed,  nor  the  limit  of  judicial  inquiry 
altered,  because  the  legislature  instead  of  the  carrier  prescribed  tlu' 
rates.  The  courts  are  not  authorized  to  revise  or  change  the  body 
of  rates  imposed  by  a  legislature  or  commission;  they  do  not  deter- 
mine whether  one  rate  is  )»referablo  to  another,  or  what  under  all 
circumstances  wouM  l>e  fair  and  reasonaljle  as  between  the  carriers 


DUTY    TO    SERVE    THE    PUBLIC.  93 

and  the  shippers;  they  do  not  engage  in  any  mere  administrative 
work;  but  still  there  can  be  no  doubt  of  their  power  and  duty  to 
inquire  whether  a  body  of  rates  prescribed  by  a  legislature  or  a  com- 
mission is  unjust  and  unreasonable,  and  such  as  to  work  a  practical 
destruction  to  rights  of  property,  and  if  found  so  to  be,  to  restrain 
its  operation.  In  Chicago,  Burlington  &  Quincy  Railroad  v.  Iowa, 
94  U.  S.  155  [89],  and  Peik  v.  Chicago  &  Northwestern  Railway, 
94  U.  S.  164,  the  question  of  legislative  control  over  railroads  was 
presented,  and  it  was  held  that  the  fixing  of  rates  was  not  a  matter 
within  the  absolute  discretion  of  the  carriers,  but  was  subject  to 
legislative  control.  As  stated  by  Justice  Miller,  in  Wabash,  etc. 
Railway  v.  Illinois,  118  U.  S.  557,  569,  in  respect  to  those  cases: 

"  The  great  question  to  be  decided,  and  which  was  decided,  and 
which  was  argued  in  all  those  cases,  was  the  right  of  the  State, 
within  which  a  railroad  company  did  business,  to  regulate  or  limit 
the  amount  of  any  of  these  traffic  charges." 

There  was  in  those  cases  no  decision  as  to  the  extent  of  control, 
but  only  as  to  the  right  of  control.  This  question  came  again  before 
this  court  in  Railroad  Commission  Cases,  116  U.  S.  307,  331,  and 
while  the  right  of  control  was  re-affirmed,  a  limitation  on  that  right 
was  plainly  intimated  in  the  following  words  of  the  Chief  Justice : 

"From  what  had  thus  been  said,  it  is  not  to  be  inferred  that  this 
power  of  limitation  or  regulation  is  itself  without  limit.  This 
power  to  regulate  is  not  a  power  to  destroy,  and  limitation  is  not 
the  equivalent  of  confiscation.  Under  pretence  of  regulating  fares 
and  freights  the  State  cannot  require  a  railroad  corporation  to  carry 
persons  or  property  without  reward;  neither  can  it  do  that  which  in 
law  amounts  to  a  taking  of  private  property  for  public  use  without 
just  compensation,  or  without  due  process  of  law." 

This  language  was  quoted  in  the  subsequent  case  of  Dow  v. 
Beidelman,  125  U.  S.  680,  689.  Again,  in  Chicago  &  St.  Paul 
Railway  v.  Minnesota,  134  U.  S.  418,  458,  it  was  said  by  Mr. 
Justice  Blatchford,  speaking  for  the  majority  of  the  court:  — 

"  The  question  of  the  reasonableness  of  a  rate  of  charge  for  trans- 
portation by  a  railroad  company,  involving  as  it  does  the  element  of 
reasonableness,  both  as  regards  the  company  and  as  regards  the 
public,  is  eminently  a  question  for  judicial  investigation,  requiring 
the  process  of  law  for  its  determination." 

And  in  Chicago  &  Grand  Trunk  Railway  v.  Wellman,  143  U.  S. 
339,  344,  is  this  declaration  of  the  law :  — 

"  The  legislature  has  power  to  fix  rates,  and  the  extent  of  judicial 
interference  is  protection  against  unreasonable  rates." 

Budd  V.  New  York,  143  U.  S.  517,  announces  nothing  to  the 
contrary.  The  question  there  was  not  whether  the  rates  were 
reasonable,  but  whether  the  business,  that  of  elevating  grain,  was 
within  legislative  control  as  to  the  matter  of  rates.  It  was  said  in 
the  opinion :  "  In  the  cases  before  us,  the  records  do  not  show  that 


04  CARRIERS   OF   GOODS. 

the  charges  fixed  by  the  statute  are  unreasonable."  Hence  there 
.vas  no  occasion  for  saying  anything  as  to  the  power  or  duty  of  the 
courts  in  case  the  rates  as  established  had  been  found  to  be  unreas- 
onable. It  was  enough  that  upon  examination  it  appeared  that 
there  was  no  evidence  upon  which  it  could  be  adjudged  that  the 
rates  were  in  fact  open  to  objection  on  that  ground. 

These  cases  all  support  the  proposition  that  while  it  is  not  the 
province  of  the  courts  to  enter  upon  the  merely  administrative  duty 
uf  framing  a  tariff  of  rates  for  carriage,  it  is  within  the  scope  of 
judicial    power  and  a  part  of  judicial   duty  to  restrain   anything 
which,  in  the  form  of  a  regulation  of  rates,  operates  to  deny  to  the 
owners  of  property  invested  in  the  business  of  transportation  that 
equal  protection  which  is  the  constitutional  right  of  all  owners  of 
other  property.     There  is  nothing  new  or  strange  in  this.     It  has 
always  been  a  part  of  the  judicial  function  to  determine  whether  the 
act  of   one  party  (whether   that   party  be  a  single    individual,  an 
organized  body,  or  the   public  as  a  whole)   operates  to  divest  the 
other  party  of  any  rights  of  person  or  property.     In  every  constitu- 
tion is   the   guarantee   against  the  taking  of  private  property  for 
public  purposes  without  just  compensation.     The  equal  protection 
of  the  laws  which,  by  the  Fourteenth  Amendment,  no    State  can 
deny  to  the  individual,  forbids  legislation,  in  whatever  form  it  may 
be  enacted,  by  which  the  property  of  one  individual   is,  without 
compensation,   wrested  from  him  for  the  benefit  of  another,  or  of 
the  public.     This,  as  has  been  often  observed,  is  a  government  of 
law,  and  not  a  government  of  men,  and  it  must  never  be  forgotten 
that  under  such  a  government,  with  its  constitutional  limitations 
and  guarantees,  the  forms  of  law  and  the  machinery  of  government, 
witli  all  tlieir  reach  and  power,  must  in  their  actual  workings  stop 
on  the  hither  side  of  the  unnecessary  and  unc()mi»ensated  taking  or 
destruction   of  any  private  property,   legally  acquired  and  l.\gally 
held.     It  was,  therefore,  within  the  competency  of  the  Circuit  Court 
of   the   United  States  for  tlie   Western   District  of  Texas,  at  the 
instance  of  the  j.laintiff,  a  citizen  of  another  State,  to  enter  upon  an 
incjuiry  as  to  the  reasonableness  and  justice  of  tlie  rates  prescribed 
by  the  railroad  commission.     Indeed,  it  was  in  so  doing  only  exer- 
cising a  power  expressly  named  in  the  act  creating  the  commission. 


carrier's  liability.  95 

4.  CARRIER'S  LIABILITY. 

a.  Act  of  God. 

PROPRIETORS   OF  THE   TRENT   NAVIGATION  v.  WOOD. 

King's  Bench.     3  Esp.  127.     1785. 

This  was  an  action  of  assumpsit. 

The  declaration  stated  that  the  plaintiffs,  as  proprietors  of  the 
Trent  Navigation,  undertook  to  carry  the  defendant's  goods  from 
Hull  to  Gainsborough;  that  in  the  river  Humber,  the  vessel  on 
board  which  the  defendant's  goods  were,  sunk,  by  driving  against 
an  anchor  in  the  river;  and  the  goods  were,  in  consequence  of  the 
accident,  considerably  damaged.  That  the  plaintiffs  repaired  the 
damage  the  goods  had  sustained,  and  sent  them  home  to  the  defend- 
ant;  and  the  breach  was,  that  the  defendant  refused,  to  pay  the 
money  the  plaintiffs  had  expended  in  the  recovery  of  the  goods. 
There  was  also  a  count  in  the  declaration  for  money  had  and 
received,  which  was  for  freight.  At  the  trial  the  plaintiffs  were 
nonsuited. 

A  rule  having  been  obtained,  to  show  cause  why  the  nonsuit 
should  not  be  set  aside,   it  came  on  to  be  argued  on  this. 

The  counsel  for  the  defendant  being  desired  to  begin,  —  Coivper 
contended,  that  the  defendant  was  not  liable  to  pay  this  money; 
there  was  no  pretence  to  say  that  the  accident  happened  from  the 
act  of  God;  for  it  was  expressly  stated  and  proved  that  the  acci- 
dent was  occasioned  by  the  negligence  of  the  persons  on  board  a 
barge  in  the  river,  in  not  having  his  buoy  out,  to  mark  the  place 
where  his  anchor  lay.  A  great  deal  of  evidence  was  adduced  at  the 
trial  to  prove  this ;  but,  as  between  the  carriers  and  the  owners  of 
the  goods,  the  misconduct  of  a  third  person  is  immaterial,  since  a 
remedy  lies  over  against  the  party  so  offending.  The  plaintiffs 
would  have  been  liable  had  the  goods  been  totally  lost;  and  there- 
fore a  fortiori  shall  answer  this  damage  themselves. 

Bower,  on  the  same  side.  The  question  is.  Whether  the  plaintiffs 
as  carriers  are  liable  for  the  damage  done  to  the  goods  in  question  ? 
The  law  in  all  cases  throws  the  burden,  when  there  is  a  loss,  upon 
a  common  carrier,  even  if  the  goods  are  taken  by  robbery,  where  it 
is  impossible  for  him  to  save  them ;  and  the  reason  is,  to  prevent 
any  collusion  between  him  and  the  thief.  He  is  certainly  liable  in 
all  cases,  except  the  two,  of  accidents  happening  by  the  act  of  God, 
or  of  the  king's  enemies.  Here  is  no  pretence  for  either.  A 
damage  taking  place  by  a  natural  accident  that  could  not  be  fore- 
seen,  may  be  called  the  act  of  God ;  but  this  arose  from  the  miscon- 


96  CARKIERS   OF   GOODS. 

duct  of  a  third  person,  and  cannot  therefore  come  within  the 
meaning  of  that  expression. 

Bearcroft,  for  the  plaintiffs.  This  is  a  question  that  concerns  all 
common  carriers;  they  are  the  bailees  of  goods;  and  as  the}'  get 
a  profit  by  this  undertaking,  they  are  also  liable  to  answer  for 
losses,  if  the  smallest  degree  of  negligence  is  proved;  but  in  the 
present  case  there  was  no  possibility  of  seeing  or  knowing  of  the 
anchor  that  did  the  mischief,  and  therefore  the  accident  happened 
from  an  inevitable  necessity;  which,  though  it  may  not  come  up  to 
the  precise  idea  of  the  act  of  God,  is  j'et  such  a  necessit}"  as  affords 
a  justification  to  the  plaintiffs. 

Plomcr,  on  the  same  side.  There  is  no  neglect  proved  on  the  part 
of  the  plaintiffs;  and  as  to  the  remedy  over  against  a  third  person, 
it  must  first  be  determined  who  are  immediately  answerable  for  the 
loss,  before  it  can  be  known  who  is  entitled  to  this  remed}-.  It  was 
in  evidence  at  the  trial,  that  there  is  considerable  danger  in  the 
voyage  from  Hull  to  Gainsborough,  and  that  it  is  therefore  usual 
for  the  owners  of  the  goods  to  insure  them;  and  as  tliere  was  no 
insurance  in  this  case,  but  only  the  price  of  the  freiglit,  which  has 
been  paid  into  court,  I  contend  that  it  was  only  a  special  acceptance 
on  the  part  of  the  plaintiffs,  and  therefore  that  they  are  not  liable 
for  the  loss  occasioned  by  the  accident  which  has  happened.  It  is 
like  a  voyage  to  the  East  Indies;  and  as  there  is  a  great  risk  in 
all  sea-voyages,  it  would  be  very  unreasonable  to  make  a  party 
liable  generally  to  answer  the  loss  where  he  has  not  stipulated  for 
the  purpose.  The  evidence  at  the  trial  of  an  usage  to  insure  goods 
for  this  voyage  varies  tlie  case  very  mucli  from  that  of  a  common 
carrier,  where  there  is  no  insurance;  therefore,  as  it  appears  that 
there  was  a  special  acceptance  in  this  case,  the  plaintiff's  are  not 
liable  to  answer  the  damages  done  to  the  goods. 

Lord  Mansfield  asked,  if  there  was  any  case  wliicli  made  dis- 
tinction between  a  land  and  a  water  carrier.  And,  none  being  men- 
tioned, Cowper,  in  reply,  put  a  case  of  an  East  Indian  in  the  Downs 
running  down  another  vessel;  and  said  that  the  owners  of  the  vessel 
nin  down  would  certainly  have  an  action  against  the  other  for  the 
damage,  and  would  also  be  liable  as  cf»mnion  carriers  to  tlieir 
fjmployers.  That  this  accident  happened  in  the  river  I  lumber, 
clearly  infra  corpus  comitatus ;  and  therefore  was  not  a  sea-voyage. 
A  custom  to  insure  was  certainly  proved;  but  because  it  is  usual,  a 
man  i.s  not  obliged  to  do  it;  and  a  carrier  will  be  equally  answeralde. 
If  a  man  pleases,  he  may  insure  his  goods  by  tlie  Chester  wagon; 
but  if  he  tloes,  still  tl»e  wagoner  must  be  liable  in  case  of  a  loss. 

Lord  Manskikm).  This  is  certainly  a  sea-voyage.  It  is  a  general 
question,  and  no  ca.se  has  been  cited  exactly  in  point;  but  it  is  clear 
that  the  carrier  is  liable  in  all  cases,  except  for  accidents  happen- 
ing by  the  act  of  (iod  or  by  the  king's  enemies.  Tlie  act  of  (Jod 
is  a  natural  necessity,  and  inevitably  such,  as  winds,  storms,  etc. 


carrier's  liability.  97 

The^  case  of  robbery  is  certainly  very  strong,  but  not  a  natural  neces- 
sity; and  in  this  case  there  is  an  injury  by  a  private  man,  within 
the  reason  of  the  instance  of  robbery ;  yet  I  think  the  carriers  ought 
to  be  liable.  There  is  some  sort  of  negligence  here;  for  as  the  buoy 
could  not  be  seen,  there  should  have  been,  on  that  account,  a  greater 
degree  of  caution  used. 

WiLLEs,  Justice,  of  the  same  opinion. 

AsHHURST,  Justice.  The  general  rule  is,  that  the  carrier  is  liable 
in  every  instance,  except  for  accidents  happening  by  the  act  of  God 
or  the  king's  enemies;  but  another  rule  is  now  attempted  to  be 
set  up;  which  is,  that  the  carrier  ought  not  to  be  liable,  where  no 
negligence  is  imputable  to  him ;  but  no  case  has  been  cited  to  prove 
this  doctrine;  and  I  think  that  good  policy  and  convenience  require 
the  rule  to  be  adhered  to  which  has  hitherto  prevailed.  It  will 
naturally  lead  to  make  carriers  more  careful  in  general.  If  this 
sort  of  negligence  were  to  excuse  the  carrier,  when  he  finds  that  an 
accident  has  happened  to  goods  from  the  misconduct  of  a  third  person, 
he  would  give  himself  no  farther  trouble  about  the  recovery  of  them ; 
nor  do  I  think  that  in  this  case  the  carrier  is  entirely  free  from 
every  imputation  of  negligence.  His  not  seeing  the  buoy  ought  to 
have  put  him  upon  inquiring  more  minutely  about  the  anchor. 

BuLLER,  Justice.  This  case  is  very  different  from  those  relied 
upon  by  the  plaintiffs ;  two  grounds  have  been  made  for  the  plain- 
tiffs: first.  That  upon  general  principles  of  law  they  are  not  liable; 
and  secondly,  That  they  are  not  liable,  because  this  was  a  special 
acceptance,  which  excluded  the  risks  of  the  sea;  but  for  this  there 
is  no  color  at  all.  It  was  proved,  at  the  trial,  that  it  was  usual  to 
insure;  but  that  does  not  show  that  the  carrier  is  not  liable  where 
there  is  no  insurance:  the  merchant  is  not  bound  tolnsure7nor  does 
that  vary  the  obligation.  Neither  is  it  to  be  presumed,  that  because" 
the  price  of  insurance  is  low,  this  risk  is  excluded  when  not  insuredT 
the  carrier  knows  the  degree  of  danger,  and  proportions  his  premium 
accordingly. 

A^  to  the  general  principle,  there  is  no  distinction  between  a  land 
and  a  water  carrier.  In  the  case  of  a  robbery  the  carrier  is  subject 
to  force  which  he  cannot  resist;  yet  he  shall  be  liable.  In  this 
case,  I  think  there  was  a  degree  of  negligence  in  point  of  fact ;  but 
the  negligence  in  point  of  law  was  sufficient. 

Rule  discharged. 


FORWAED  V.   PITTARD. 
King's  Bench.     1  Term  R.  27.     1785. 


This  was  an  action  on  the  case  against  the  defendant  as  a  common 
carrier,  for  not  safely  carrying  and  delivering  the  plaintiff's  goods. 


98  CARRIERS    OF   GOODS. 

This  action  was  tried  at  the   hist  summer  assizes   at  Dorchester, 
before   Mr.  Baron  Perrjn,  when  the  jury  found  a  verdict  for  the 
plaintiff.  subjt'Ct  to  the  opinion  of  the  court  on  the  following  case : 
*•  The  defendant  was  a  common  carrier  from  London  to  Shafts- 


bury.  That  on  Thursday  the  14th  of  October,  1784,  the  plaintitY 
delivered  to  him  mi  Weyhill  twelve  pockets  of  hops  to  be  carried  by 
him  to  Aiidover,  and  to  be  by  him  l'or\vardt.'d  to  Shaftsbury  by  his 
public  road  wagon,  which  travels  from  London  tlirough  Andover  to 
Shaftsbury.  That,  by  the  course  of  travelling,  such  wagon  was  not 
to  leave  Andover  till  the  Saturday  eveuinsx  followiiig.     That  in  the 


night  of  the   following  day  after  tlu'  deliver}-  of  the  hops,  a  tire 

broke  out  in  a  booth  at  the  distance  of  cme  Imndred  yards  from  the 

booth  in  which  the  defendant  liad  dejxisited  the  ho])S,  which  burnt^ 

for  some  time  witli  unextinguishable  violence,  and  durin<4  that  time 

communicated  itself  to  the  said  booth  in  which  the  defendant  had 

dc])Osited  the  ho]is.  and  entirely  consumed  tliem  without  any  actual 

negligence  in  the  defendant.     That  the  fire  was  not  occasioned  by 

li'ditniu"." 
c _: a 


y.  Bond,  for  the  plaintiff.  The  question  is,  whether  a  carrier  is 
liable  for  the  loss  of  goods  occasioned  by  lire,  without  any  negli- 
gence in  him  or  his  servants.  The  general  proposition  is,  that  the 
carrier  is  liable  in  all  cases,  except  the  loss  be  occasioned  by  the 
act  of  God  or  the  king's  enemies.  Lord  Raymond,  900;  1  Wils. 
281.  And  this  doctrine  has  lately  been  recognized  by  this  Court,  in 
the  case  of  the  Company  of  the  Trent  Navigation  v.  Wood.  East. 
"25  Geo.  3  B.  R.  The  only  doubt  is  on  the  construction  of  the  words 
"the  act  of  God."  It  is  an  effect  immediately  produced  without  the 
interposition  of  any  human  cause.  In  Amies  and  Stephens,  1  Stra. 
128,  these  words  were  held  to  include  the  case  of  a  shij)  being  lost 
by  tempest.  In  the  books,  under  the  head  of  "waste,"  there  is  an 
analogous  distinction  to  be  found:  if  a  house  fall  down  by  tcmi)est, 
•or  be  burned  by  liglitning,  it  is  no  waste;  but  burning  by  negligence 
or  mischance  is  waste.     Co.  Lit.  53,  n,  b. 

Before  the  Gth  of  Anne,  G  Ann.  c.  31;  1<)  Ann.  c.  14,  an  action  lay 
against  any  person  in  whose  house  a  fire  accidentally  began:  this 
shows  that  an  accidental  fire  was  not  in  law  considered  as  the  act  of 
God;  but  the  person  was  punishable  for  negligence.  Suppose  a  fire 
hai)pens  in  a  house  where  there  are  different  lodgers,  each  of  wliose 
lodgings  is  considered  as  a  separate  house:  if  the  fire  bo  communi- 
cated from  one  lodging  to  anotlier,  and  the  Court  say  the  first  fire 
was  the  act  of  man,  at  wliat  time  will  it  be  said  that  it  ceases  to  bo 
tlie  act  of  man  and  commences  to  be  the  act  of  God  ?  If  it  were  not 
the  act  of  man  in  tlio  first  iiouse,  it  is  imi)0ssiblu  to  draw  tlie  line. 
In  the  ca.se  of  the  Comi)any  of  the  Trent  Navigation  and  Wood, 
Lord  Mansfield  said,  "liy  the  act  of  God  is  meant  a  natural,  not 
merely  an  in<*vitablo,  accident." 

If  it  be  contended  for  the  defendant  that  it  is  here  stated  that 


carrier's  liability.  99 

there  was  no  actual  negligence,  that  will  not  serve  him;  for  this 
action  was  not  founded  in  negligence.  Lord  Holt  says,  there  are 
several  species  of  bailments,  and  different  degrees  of  liability- 
annexed  to  each;  and  a  carrier  is  that  kind  of  bailee  who  is  answer- 
able though  there  be  no  actual  negligence.  «^ 

Borougli,  for  the  defendant,  observed  that  the  point  in  this  case    -.  ''« 
was  not  before  the  Court  in  any  of  the  cases   cited.     The  general      '«^^ 
question  here  is,  whether  a  carrier  is  compellable  to  make  satisfac-    r^ 
tion  for  goods  delivered  to  him  to  carry,  and  destroyed   by  mere        -^'l 
accident,  in  a  case  where  negligence  is  so  far  from  being  imputed   '"'' •^. 
to  him  that  it  is  expressly  negatived  ?     This  action  of  assumpsit  *^^ 
must  be  considered  as  an  action  founded  on  Avhat  is  called  the  custom 
of  the  realm  relating  to  carriers.     And  from  a  review  of  all  the 
cases  on  this  subject  it  manifestly  appears  that  a  carrier  is  only 
liable  for  damage  and  loss  occasioned  by  the  acts  or  negligence  of 
himself   and  servants,  that  is,   for  such   damage  and   loss   only  as 
human  care  or  foresight  can  prevent;  and  that  there  is  no  implied 
contract  between  him  and  his  employers  to  indemnify  them  against 
unavoidable  accidents.     The  law  with  respect  to  land  carriers  and 
water  carriers  is  the  same.     Eich  v.  Kneeland,  Cro.  Jac.  330;  Hob. 
17,  5  Burr.  2827. 

In  Vid.  27.  The  declaration,  in  an  action  against  a  waterman 
for  negligently  keeping  his  goods,  states  the  custom  relative  to 
carriers  thus,  "  absque  suhstractione,  amissione,  seu  spoliatione,  portare 
tenentur,  ita  quod  pro  defectu  dictorum  communium  portatorum  seu 
servientiuvi  snorum,  hujusmodi  bona  et  catalla  eis  sic  ut  prefertur 
deliberata,  non  sint perdita,  amissa,  seu  spoliata."  It  then  states  the 
breach,  that  the  defendant  had  not  delivered  them,  and  '^j^^^o  defectu 
honcB  custodice  ipsius  defendentis  et  servientlum  stionon  p)erdita  et 
amissa  fuerunty  In  Brownl.  Bed.  12,  the  breach  in  a  declaration 
against  a  carrier  is,  "  defendens  tarn  negligenter  et  improvide  eustodivit 
etcarriavit,  <fec."  In  Clift.  38,  39,  Mod.  Intr.  91,  92,  and  Heme,  76, 
the  entries  are  to  the  same  effect.  In  Eich  and  Kneeland,  Hob.  17, 
the  custom  is  stated  in  a  similar  way;  and  in  the  Exchequer 
Chamber  it  was  resolved,  "that  though  it  was  laid  as  a  custom  of 
the  realm,  yet  indeed  it  is  common  law."  On  considering  these 
cases,  it  is  not  true  that ''  the  act  of  God  and  of  the  king's  enemies  " 
is  an  exception  from  the  law.  Por  an  exception  is  always  of  some- 
thing comprehended  within  the  rule,  and  therefore  excepted  out  of 
it;  but  the  act  of  God  and  of  the  king's  enemies  is  not  within  the 
law  as  laid  down  in  the  books  cited. 

All  the  authorities  cited  by  the  counsel  for  the  plaintiff  are  founded 
on  the  dictum  in  Coggs  v.  Bernard,  2  Lord  Eaymond,  909,  where 
this  doctrine  was  first  laid  down;  but  Lord  Holt  did  not  mean  to 
state  the  proposition  in  the  sense  in  which  it  has  been  contended  he 
did  state  it.  He  did  not  intend  to  say,  that  cases  falling  within  the 
reasoning   of  what  are  vulgarly  called  "acts  of  God"  should  not 


100  CARRIERS   OF   GOODS. 

also  be  good  defences  for  a  carrier.  After  saying  (Lord  Kaymond, 
918),  "the  law  charges  the  persons,  thus  intrusted  to  carry  goods, 
against  all  events  but  the  acts  of  God  and  of  the  enemies  of  the 
king,''  he  proceeds  thus,  ''for  though  the  force  be  never  so  great,  as 
if  an  irresistible  multitude  of  people  should  rob  him,  nevertheless 
he  is  chargeable. "  And  this  is  a  politic  establishment,  contrived  by 
the  policy  of  the  law  for  the  safety  of  all  persons,  the  necessity  of 
whose  affairs  oblige  them  to  trust  these  sorts  of  persons,  that  they 
may  be  safe  in  their  ways  of  dealing;  for  else  these  carriers  might 
have  an  opportunity  of  undoing  all  persons  who  had  any  dealings 
with  them,  by  combining  with  thieves,  etc. ,  and  yet  doing  it  in 
such  a  clandestine  manner  as  would  not  be  possible  to  be  discov- 
ered." As  Lord  Holt  therefore  states  the  responsibility  of  carriers 
in  case  of  robbery  to  take  its  origin  from  a  ground  of  policy,  he 
could  not  mean  to  say  that  a  carrier  was  also  liable  in  cases  of 
accidents,  where  neither  combination  or  negligence  can  possibly 
exist. 

It  appears  from  the  Doctor  and  Student  (Dial.  2,  c.  38,  p.  270) 
that,  at  the  time  that  book  was  written,  the  carrier  was  held  liable 
for  robberies  which  diligence  and  foresight  might  prevent.  And 
what  is  there  said  agrees  precisel}'  with  the  custom,  and  does  not 
bear  hard  on  the  carrier.  If  he  will  travel  by  night,  and  is  robbed, 
he  has  no  remedy  against  the  lumdred;  for  then  he  is  not  protected 
by  the  statute  of  Winton,  and  he  ought  to  be  answerable  to  the 
employer.  If  he  travel  by  day  and  is  robbed,  he  has  a  remedy. 
Now  the  carrier  may  not  perhaps  be  worth  suing;  and  the  employer 
may  bring  the  action  against  the  hundred  in  his  own  name;  which 
action  he  would  be  deprived  of,  if  the  carrier  travelled  by  night. 

There  is  not  a  single  authority  in  all  the  old  books  which  says 
that  a  carrier  is  responsible  for  mere  accidents.  He  only  engages 
against  substraction,  spoil,  and  loss,  occasioned  by  the  neglect  of 
himself  or  his  servants.  These  words  plainly  ])oint  at  acts  to  be 
done,  and  omissions  of  care  and  diligence.  But  in  the  ])resent  case 
there  is  no  act  done;  and  tliere  cannot  be  said  to  be  any  omission 
of  care  and  diligence,  since  they  could  not  have  prevented  the 
calamity. 

Lord  Holt,  in  Coggs  o.  Bernard,  seems  to  have  traced,  with  great 
attention,  the  different  species  of  bailments.  He  cites  many  pas- 
sages from  iJracton,  who  has  nearly  copied  them  from  Justinian. 
So  that  it  is  j)robable  that  the  custom  relating  to  carriers  took  its 
origin  from  the  civil  law  as  to  l)ailments.  Now  it  is  observable  that 
in  no  one  case  of  bailment  is  tlie  bailee  answerable  for  an  accident; 
he  is  only  lialjle  for  want  of  diligence.  The  only  difference  in  this 
respect  bi^tween  the  civil  and  tlio  English  law  is,  tliat  the  former 
(Justin,  lib.  3,  15,  s.  2,  3,  4,  tit.  35,  s.  6)  distinguishes  between 
the  different  degrees  of  diligence  rerpiirod  in  tlie  different  species 
of  bailment;  which  the  latter  does  not. 


carrier's  liability.  101 

In  all  the  cases  to  be  found  in  our  books  may  be  traced  the  true 
ground  of  liability,  negligence.  If  the  law  were  not  as  is  now  con- 
tended for,  the  question  of  negligence  could  never  have  arisen;  and 
the  case  of  robbery  could  not  have  borne  any  argument;  whereas 
the  case  of  Mors  v.  Slue,  1  Vent.  190,  238,  [114]  came  on  repeatedly 
before  the  Court,  and  created  very  considerable  doubts. 

In  the  case  of  Dale  v.  Hall,  1  Wils.  281,  and  the  Proprietors  of 
the  Trent  Navigation  v.  Wood,  3  Esp.  127  [95],  there  were  clear 
facts  of  negligence.  In  the  first,  the  rats  gnawed  a  hole  in  the  hoy, 
which  undoubtedly  might  have  been  prevented.  And  in  the  other, 
each  of  the  judges,  in  giving  his  opinion,  said  there  was  negligence. 

In  the  Year  Books,  22  Ass.  41,  there  is  a  case  of  an  action  against 
a  waterman  for  overloading  his  boat  so  that  the  plaintiff's  horse  was 
drowned.  This  case  is  recognized  in  Williams  v.  Lloyd,  S.  W. 
Jones,  180,  where  it  is  said  "  it  was  there  agreed  that  if  he  had  not 
surcharged  the  boat,  although  the  horse  was  drowned,  no  action  lies, 
notwithstanding  the  assumpsit;  but  if  he  surcharged  the  boat,  other- 
wise; for  there  is  default  and  negligence  in  the  party."  The 
Court  in  22  Ass.  41,  said,  "  it  seems  that  you  trespassed  when  you 
surcharged  the  boat  by  which  the  horse  perished."  The  same  case 
is  to  be  found  in  1  Eo.  Abr.  10,  pi.  18,  Bro.  Tit.  Action  sur  le  Case 
78.  And  it  is  also  recognized  in  Williams  v.  Hide  and  Ux.  Palm. 
548. 

In  Winch.  26.  To  an  action  against  a  carrier,  there  is  a  special 
plea  that  the  inn  in  which  the  goods  were  deposited  was  burned  by 
fire,  and  that  the  plaintiff's  goods  were  at  the  same  time  destroyed, 
without  the  default  or  neglect  of  the  defendant  or  his  servants.  To 
this  the  plaintiff  demurred,  not  generally  but  specially,  "that  the 
plea  amounted  to  the  general  issue." 

In  all  actions  founded  in  negligence,  the  negligence  is  alleged  and 
tried,  as  a  fact;  as  in  actions  against  a  farrier,  smith,  coachman, 
etc.  It  is  the  constant  course  in  such  actions  to  leave  the  question 
of  negligence  to  the  jury.  It  appears  in  Dalston  v.  Janson,  5  Mod. 
90,  that  the  defendant  formerly  used  to  plead  particularly  to  the 
neglect.  In  43  Edw.  3,  33;  Clerk's  Assist.  99;  Mod.  Intr.  95,  and 
Brown.  Ked.  101,  which  were  actions  founded  in  negligence,  the 
negligence  is  traversed.  Now  a  traverse  can  be  only  of  matter  of 
fact.     And  here  negligence  is  expressly  negatived  by  the  case. 

However,  if  the  Court  should  be  of  the  opinion  that  the  carrier 
is  answerable  for  every  loss,  unless  occasioned  by  the  act  of  God 
or  the  king's  enemies,  he  then  contended  that,  as  the  act  of  God 
was  a  good  ground  of  defence,  this  accident,  though  not  within  the 
^vords,  was  within  the  reaso7i,  of  that  ground.  It  cannot  be  said 
that  misfortunes  occasioned  by  lightning,  rain,  wind,  etc.,  are  the 
immediate  acts  of  the  Almighty;  they  are  permitted,  but  not  directed 
by  him.  The  reason  why  these  accidents  are  not  held  to  charge 
a  carrier,  is,  that  they  are  not  under  the  control  of  the  contracting 


102  CARRIERS   OF   GOODS. 

party,  and  therefore  cannot  affect  the  contract,  inasmuch  as  he 
engages  only  against  those  events  which  by  possibility  he  may  i^re- 
vent.  Lord  Bacon,  in  his  Law  Tracts,  commenting  on  this  maxim, 
Reg.  5,  necessitas  inducit  priv'degiinyi  quoad  Jura  privata,  says,  "the 
law  charges  no  man  with  default  where  the  act  is  compulsor}'  and 
not  voluntary,  and  where  there  is  not  a  consent  and  election;  there- 
fore, if  either  there  be  an  impossibility  for  a  man  to  do  otherwise, 
or  so  great  a  perturbation  of  the  judgment  and  reason  as  in  pre- 
sumption of  law  man's  nature  cannot  overcome,  such  necessity 
carrieth  a  privilege  in  itself."  Necessity,  he  says,  is  of  three  sorts, 
and  under  the  third,  he  adds,  "If  a  fire  be  taken  in  a  street,  I  may 
justify  pulling  down  the  walls  or  house  of  another  man  to  save  the 
row  from  the  spreading  of  the  fire."  Now  in  the  present  case,  if 
any  person,  in  order  to  stop  the  progress  of  the  flames,  had  insisted 
on  pulling  down  the  booth  wherein  the  hops  were  deposited,  and  in 
doing  this  the  hops  would  have  been  damaged,  the  carrier  would  not 
have  been  liable  to  make  good  such  danjage;  for  it  would  have  been 
unlawful  for  him  to  have  prevented  the  pulling  down  the  booth. 

It  is  expressly  found,  in  the  present  case,  that  the  fire  burnt  with 
unextinguishable  violence.  The  breaking  out  of  the  fire  was  an 
event  which  God  only  could  foresee.  And  the  course  it  would  take 
was  as  little  to  be  discovered  by  human  penetration. 

Bond,  in  reply.  There  are  several  strong  cases  where  there  could 
not  be  any  negligence.  It  is  not  sufficient  in  these  cases  to  negative 
any  negligence;  for  everything  is  negligence  which  the  law  does 
not  excuse,  1  Wils.  282.  And  the  question  here  is,  is  this  a  case 
which  the  law  does  excuse  ?  In  Goffe  v.  Clinkard,  cited  in  Wils.  282, 
there  was  all  possible  care  on  the  part  of  the  defendants.  The  judg- 
ment in  the  case  of  Gibbon  v.  Peyton  and  another,  4  Burr.  2298, 
which  was  an  action  against  a  stagecoachman  for  not  delivering 
money  sent,  is  extremely  strong;  there  Lord  Mansfield  said,  4  Burr. 
2030,  "a  common  carrier,  in  respect  of  the  premium  he  is  to  receive, 
runs  the  risk  of  them,  and  must  make  good  the  loss,  though  it 
happen  without  any  fault  in  him;  the  reward  making  hira  answer- 
able for  their  safe  delivery." 

That  a  carrier  was  liable  in  the  case  of  a  robbery  was  first  hold  in 
9  Ed.  4,  pi.  40. 

A  bailee  only  engages  to  take  care  of  his  goods  as  his  own,  and  is 
not  answerable  for  a  robljcry ;  but  a  carrier  insures.  1  Ventr.  190, 
2:38;  Sir  T.  Kaym.  220,  s.  <•.;  1  Mod.  85. 

In  Barclay  and  Ileygena,  E.  21,  G.  3,  B.  11.,  which  was  an  action 
against  a  master  of  a  ship  to  recover  the  value  of  some  goods  put  on 
bftard  liis  ship  in  order  to  be  carried  to  St.  Sebastian;  it  was  proved 
tliat  an  irresistible  force  broke  into  tlie  shij)  in  the  river  Thanios,  and 
stole  the  goods;  yet  the  defendant  was  held  answerable.  In  Sutton 
and  Mitchel,  at  the  sittings  at  Guildhall  after  Tr.  25,  G.  3,  thr  ques- 
tion was  not  disputed  as  far  as  to  tlie  value  of  the  ship  and  freight. 


carrier's  liability.  103 

There  is  no  distinction  between  that  case  and  a  land  carrier.  And 
there  can  be  no  hardship  in  the  Court's  determining  in  favor  of  the 
plaintiff;  for  when  the  law  is  once  known  and  established,  the 
parties  may  contract  according  to  the  terms  which  it  prescribes. 

As  to.  negligence  being  a  matter  of  fact,  that  is  answered  by  the 
decision  in  the  Company  of  the  Trent  Navigation  against  Wood. 

Lord  ^Mansfield.  There  is  a  nicety  of  distinction  between  the 
act  of  God  and  inevitable  necessity.  In  these  cases  actual  negli- 
gence is  not  necessary  to  support  the  action.      Cur.  adv.  vult. 

Afterward  Lord  Mansfield  delivered  the  unanimous  opinion  of  the 
Court. 

After  stating  the  case  —  The   question  is,  whether  the  common 
carrier  is  liable  in  this  case  of  fire  ?     It  appears  from  all  the  cases 
for   one  hundred  years  back,  that  there  are  events   for  which  the 
carrier  is  liable  independent  of  his  contract.     By  the  nature  of  his 
contract,  he  is  liable  for  all  due  care  and  diligence;  and  for  any 
negligence   he   is  suable  on  his  contract.     But  there  is  a  further 
degree  of  responsibility  by  the  custom  of  the  realm, — that  is,  by  the 
common   law;  a  carrier  is  in  the  nature  of  an  insurer.     It  is  laid 
down  that  he  is  liable  for  every  accident,  except  by  the  act  of  God 
or  the  king's  enemies.     Now  what  is  the  act  of  God  ?     I  consider 
it  to  mean  something  in  opposition  to  the  act  of  man;  for  every- 
thing is  the  act  of  God  that  happens  by  his  permission;  everything  i'^' 
by  his  knowledge.     But  to  prevent  litigation,   collusion,  and  the    \l^*      , 
necessity  of  going  into  circumstances  impossible  to  be  unravelled,          -V* 
the  law  presumes  against  the  carrier,  unless  he  shows  it  was  done*  ^ 
by  the  king's  enemies,  or  by  such  act  as  could  not  happen  by  the'        .^ 
intervention  of  man,  as  storms,  lightning,  and  tempests.                      S^' 

If  an  armed  force  come  to  rob  the  carrier  of  the  goods,  he  is 
liable;  and  a  reason  is  given  in  the  books,  which  is  a  bad  one,  viz., 
that  he  ought  to  have  a  sufficient  force  to  repel  it;  but  that  would 
be  impossible  in  some  cases,  as,  for  instance,  in  the  riots  in  the  year 
1780.  The  true  reason  is,  for  fear  it  may  give  room  for  collusion, 
that  the  master  may  contrive  to  be  robbed  on  purpose,  and  share  the 
spoil. 

In  this  case,  it  does  not  appear  but  that  the  fire  arose  from  the 
act  of  some  man  or  other.  It  certainly  did  arise  from  some  act  of 
man;  for  it  is  expressly  stated  not  to  have  happened  by  lightning. 
The  carrier  therefore  in  this  case  is  liable,  inasmuch  as  he  is  liable 
for  inevitable  accident. 

Judgment  for  the  plaintiff. 


fj- 


104  CARRIERS    OF   GOODS. 

COLT   V.    M'MECHEX. 

6  Johns.  (N.  Y.  Sup.  Ct.)  160.     1810. 

T}iis  -was  an  action  on  the  case,  against  the  defendant,  as  a 
common  carrier  of  goods  for  hire,  in  a  certain  sloop,  called  the 
"Margaret,"  between  Kinderhook  and  ISTew  York,  on  the  Hudson 
River.  The  declaration  stated  that  the  plaintiffs  were  possessed  of 
certain  goods,  etc.,  which  the  defendant,  by  his  servant  ^Matthew 
M'Kean,  master  of  the  said  sloop,  received  on  l)oard  to  carry,  trans- 
port, and  convey  from  New  York  to  Kinderhook  lauding,  for  a  reas- 
onable price  or  compensation,  etc.,  but  that  the  goods  were  never 
delivered,  etc.     Plea,  not  guilty. 

Spencer,  J.  The  plaintiffs  have  moved  for  a  new  trial  on  two 
grounds:  1st,  For  a  misdirection  to  the  jury,  in  stating  that  the 
failure  of  the  wind  was  the  act  of  God;  and,  2d,  For  that  the  ver- 
dict was  against  evidence,  on  the  point  submitted  to  the  jury,  in 
relation  to  the  negligence  or  carelessness  of  the  master  of  the  sloop, 
after  she  struck. 

There  can  be  no  contrariety  of  oyjinion,  on  the  law  which  renders 
common  carriers  liable.  However  rigid  the  rule  may  Ije,  they  are 
responsible  for  every  injury  done  to  goods  intrusted  to  them  to 
carry,  unless  it  proceeds  from  the  act  of  God,  or  the  enemies  of  the 
land.  "What  shall  be  considered  the  act  of  God,  as  contra-distin- 
guished  from  au  act  resulting  from  human  means,  affords  the  only 
difficulty  in  the  case. 

The  cause  was  summed  up  to  the  jury  on  this  point,  ''that  if  they 
were  satisfied  from  the  whole  evidence,  that  the  vessel  ran  ashore 
in  consequence  of  tlie  sudden  failure  of  the  wind,  the  law  would 
consider  it  as  the  act  of  God,  and  exculpate  the  defendant."  By 
finding  a  verdict  for  the  defendant,  the  jury  have  believed  the  testi- 
mony of  Captain  M'Kean,  and  tlie  other  witnesses  produced  by  the 
defendant,  in  their  acc(;unt  of  tlie  manntn-  and  circumstances  under 
which  the  vessel  grounded.  Tlie  substance  of  tliat  testimony  is, 
that  the  vessel  being  on  her  passage  from  New  York  to  Ivinderhook, 
late  in  the  month  of  Novemlicr,  18(K>,  proceeded  on  the  passage  to 
West  Camp,  where  the  vessel  came  to^  from  thence  tliey  weighed 
anchor  and  bent  ri'^'ainst  the  wind;  from  the  latenegs-t)!' the  season. 
and  for  f ear  i  he  captain  was  anxious  to  iq#.cp  'Living^^tou's 

dock,  which  .....    w,    i.i.....,i  ri  ])lace  of  safety,  and  aw^'hicli  tlu-y  had 
nearly  arrived,    wli«  f-ident   happcuied;  that  the  wind  was 

Ik;]-  '  ]>•,  \,ni  .,:.  '■    iliiMu  to  make  considerable 

]>r<j  nl'i   h:i  :.    if  it  had  continue<l,    to 

ha  '  <1  titc  dock,  in  a  few  more  tacks; 

til'  .  ..■     ...    r  shore,  and  had  a]iproached  it,   as 

ne. :  .  when  they  put  down  the  lielm  to  bring  Iter 


CARKIEli'S    LIABILITY.  105 

about,  the  jib  sail  began  to  fill,  the  vessel  partly  changed  her  tack, 
when  the  wind  suddenly  ceased  blowing,  and  the  headway  under  which 
the  vessel  was,  shot  her  on  the  bank.  Captain  M'Kean  states,  that 
lie  was  well  acquainted  with  the  shore,  and  had  before  approached 
as  near  as  he  did  then,  when  beating  to  windward ;  and  that,  when 
standing  for  the  west  shore,  he  had  wind  enough  to  enable  him  to 
manage  the  vessel  with  safety;  that  as  the  water  fell,  the  stern  of 
the  sloop  settled,  and  did  not  rise  until  flood  tide,  in  consequence  of 
which  the  water  rushed  in  at  the  windows,  and  thereby  the  plain- 
tiff's goods  were  wet  and  damaged.  He  states,  distinctly,  that  the 
sudden  and  entire  failure  of  the  wind  was  the  sole  cause  of  the 
vessel's  grounding. 

The  case  of  Amies  v.  Stevens,  1  Str.  128,  shows  that  a  sudden 
gust  of  wind,  by  which  the  hoy  of  the  carrier,  shooting  a  bridge, 
was  driven  against  a  pier  and  overset,  by  the  violence  of  the  shock, 
has  been  adjudged  to  be  the  act  of  God,  or  vis  divina.  The  sudden 
gust,  in  the  case  of  the  hoyman,  and  the  sudden  and  entire  failure 
of  the  wind  sufficient  to  enable  the  vessel  to  beat,  are  equally  to  be 
considered  the  acts  of  God.  He  caused  the  gust  to  blow  in  the  one 
case;  and  in  the  other,  the  wind  was  stayed  by  Him. 

It  has  been  said,  that  the  captain  was  guilty  of  negligence  in 
attempting  to  beat,  and  in  approaching  the  shore  as  near  as  he  did 
when  the  disaster  happened,  the  wind  being,  as  he  states,  light  and 
variable.  It  may  be  observed,  that  the  master  had  his  choice  of 
alternatives,  either  to  improve  the  wind  he  then  had,  in  order  to 
reach  a  place  of  safety,  or  to  be  exposed,  in  the  middle  of  the  river, 
to  the  effects  of  ice.  The  season  of  the  year,  and  the  interests  of 
all  concerned,  justified  the  captain  in  attempting  to  reach  Living- 
ston's dock.  It  was  not,  as  I  recollect,  pretended,  on  the  trial,  that 
his  conduct  was  improper  and  unusual,  in  approaching  the  shore  as 
near  as  he  did  on  the  tack  in  which  the  vessel  grounded;  at  all 
events,  the  case  does  not  show  that  the  judge  expressed  any  opinion 
on  that  point ;  and  the  plaintiff  must  have  had  the  full  benefit  of 
that  objection  to  the  captain's  conduct.  I  should  undoubtedly  have 
been  of  opinion,  as  the  captain  was  situated,  taking  into  view  the 
lateness  of  the  season,  the  narrowness  of  the  channel,  and  the  fact 
that  he  was  not  nearer  the  shore  than  is  usual  and  customary  in 
beating,  that  he  was  not  guilty  of  negligence  or  improper  conduct 
in  that  respect. 

No  rule  of  law  having  been  violated,  in  the  charge  to  the  jury,  if 
there  even  were  grounds  for  saying  that  there  is  some  degree  of 
negligence  imputable  to  the  master,  that  point  has  been  under  the 
consideration  of  the  jury,  or  it  was  not  insisted  on  before  them, 
and,  in  either  case,  when  the  plaintiffs  attempt  to  fix  the  defendants 
with  a  loss  from  a  very  rigid  rule  of  law,  I  should  not  disturb  the 
verdict  of  a  jury,  to  give  them  another  opportunity  to  urge  that 
objection.     In  the  case  of  The  Proprietors  of  the  Trent  Navigation 


106  CARRIERS   OF   GOODS. 

f.  "Wood,  the  vessel  was  sunk,  by  driving  against  an  anchor,  in  the 
river  Humber,  and  the  goods  were  considerably  damaged  by  the 
accident;  it  was  not  pretended  by  the  counsel  that  this  was  the  act 
of  God,  and  Lord  Mansfield  considered  it  the  injury  of  a  private 
man,  within  the  reason  of  the  instance  of  robbery.  Abbott,  in  his 
notice  of  this  case  (Abbott,  '2o(}),  observes  that  both  parties  were 
held  to  have  been  guilty  of  negligence,  the  one  in  leaving  his  anchor 
without  a  buoy,  the  other  in  not  avoiding  it;  as  when  he  saw  the 
vessel  in  the  river,  he  must  have  known  that  there  was  an  anchor 
near  at  hand;  or  if  it  was  to  be  taken,  that  negligence  was  impu- 
table only  to  the  master,  who  had  left  his  anchor  without  a  buoy, 
that  he  was  answerable  over  to  the  masters  and  owners  of  the  vessel, 
whose  cargo  had  been  injured.  Again,  he  observes  (p.  227),  that  if 
a  ship  is  forced  on  a  rock  or  shallow,  by  adverse  Avinds  or  tempests, 
or  if  the  shallow  was  occasioned  by  a  recent  collection  of  sand, 
where  ships  could  before  sail  with  safety,  the  loss  is  to  be  attributed 
to  the  act  of  God,  or  the  perils  of  the  sea.  Upon  a  position  so 
plain,  in  my  apprehension,  as  that  the  sudden  cessation  of  a  wind 
which  was  competent,  at  the  very  moment  wlien  the  vessel  began 
to  come  about,  for  the  avoidance  of  the  shoal,  was  the  act  of  God, 
and  did  not  arise  from  the  fault  or  negligence  of  man,  I  am  at  a 
loss  for  further  illustration. 

The  second  point,  on  which  a  new  trial  is  souglit,  was  fairly  and 
fully  before  tlie  jury;  and  without  entering  upon  it  further,  I  can- 
not but  express  my  perfect  concurrence  in  opinion  with  them;  the 
master  did  everything  which  could  reasonably  be  expected  of  him 
to  prevent  the  vessel  from  sinking.  Accordingly,  my  opinion  is 
against  a  new  trial. 

Thompson,  J.,  Vax  Ness,  J.,  and  Yates,  J.,  concurred. 

Kext,  Ch.  J.  I  concur  in  the  general  doctrine,  that  the  sudden 
failure  of  the  wind  was  an  act  of  God.  It  was  an  event  whicli 
cpuM  not  happen  by  the  intervention  of  man,  nor  beprevontcdjby 
human  prudence.  liut  I  tliink  here  was  a  degree  of  negligence, 
imputable  to  tlie  master,  in  sailing  so  near  tlie  sliure  under  a  ''light, 
variable  wind,"  that  a  failure  in  coming  about  would  cast  liim 
agnmnd.  He  ouglit  to  have  exercised  more  caution,  and  guarded 
against  such  a  probable  event,  in  that  case,  as  the  want  of  wind  to 
bring  his  vessel  al)ont.  A  common  carrier  is  only  to  be  excused 
from  a  loss  hajjpening  in  sjjite  of  all  human  effort  and  sagacity. 
Trent  Navigation  r.  Wood,  3  P'sp.  N.  V.  127  [96].  A  casus  f»r- 
tu'itus  was  defined,  in  the  civil  law,  to  be  fjiiod  futo  contlngit,  mivis 
d'Ul'jKTitisslmo  possit  conthigcre.  lint  as  tliis  point  docs  not  ai)i)('ar 
to  have  been  particularly  urged  at  the  trial,  and  the  verdict  nega- 
tives the  charge  of  negligence;  and  as  the  res])onsibility  of  com- 
mon carriers  may  be  deemed  sufficiently  strict,  I  am  content  not  to 
interfere  witli  the  verdict,  thougli  I  think  that  the  evidence  would 
have  warranted  the  conclusion  of  negligence  to  a  certain  extent. 

Judgtm-ut  fur  the  dvfcndoni . 


carkier's  liability.  107 

FKIEND.ETC.   V.   WOODS. 
6  Gratt.  (Ya.)  189.     1849. 

Daniel,  J.  By  the  common  law  a  carrier  is  treated  as  an  insurer 
against  all  damage  to,  or  loss  of,  goods  intrusted  to  him  for  trans- 
portation, except  such  as  may  arise  from  the  act  of  God,  the  act  of 
the  enemies  of  the  country,  or  the  act  of  the  owner  of  the  goods. 
In  the  case  of  Murphy,  Brown  &  Co.  v.  Staton,  3  Munf.  239,  it 
was  decided  by  this  Court  that  the  owners  of  boats  engaged  in  the 
upper  navigation  of  James  River  were  subject  to  this  rule,  and 
liable  for  losses  arising  from  the  dangers  of  that  navigation.  It  was 
also  further  decided  in  that  case  that  if  a  loss  happens,  the  onus  lies 
on  the  carrier  to  exempt  himself  from  liability ;  and  that  his  defence  ' 
is  not  sustained  by  showing  that  the  navigation  is  attended  with  so 
much  danger  that  a  loss  may  happen ,  notwithstanding  the  utmost 
efforts  to  prevent  it,  and  that  the  person  conducting  the  boat  pos-  ' 
sessed  competent  skill,  used  due  diligence,  and  provided  hands  of 
sufficient  strength  and  experience  to  assist  him.  i 

The  propriety  of  the  decision  it  is  believed  has  not  been  ques- 
tioned. We  have  at  least  no  report  of  any  effort  to  disturb  it.  The 
case  may  therefore  be  regarded  as  settling  that  the  liabilities  of 
common  carriers  upon  our  navigable  streams  are  fixed  by  the  com- 
mon-law rule,  and  that  losses  arising  from  the  ordinary  dangers  of 
navigation,  however  great  and  however  carefully  guarded  against, 
do  not  fall  within  the  exception. 

It  is  contended  by  the  plaintiffs  in  error,  that  the  evidence  offered 
by  them  in  the  Court  below  tended  to  show  that  the  loss  sustained 
by  the  plaintiff  was  occasioned  by  such  an  extraordinary  peril  as 
negatived  all  legal  inference  of  negligence  on  the  part  of  the  carrier, 
and  made  the  loss  ref errible  to  the  act  of  God ;  and  that  the  instruc- 
tion given  by  the  Court  at  the  instance  of  the  plaintiff  was  erroneous 
and  prejudicial  to  them. 

It  appears  from  the  bill  of  exceptions,  that  the  plaintiff,  having 
proved  that  he  delivered  at  the  Kanawha  Salines,  in  the  county  of 
Kanawha,  on  board  of  a  steamboat  in  the  charge  of  the  defendants, 
who  were  the  owners  thereof,  and  common  carriers,  a  quantity  of 
salt,  to  be  carried  on  the  said  boat  to  Nashville,  in  the  State  of 
Tennessee,  for  the  transportation  of  which  the  defendants  were  to 
receive  a  stipulated  freight  per  barrel;  and  that  the  said  boat 
freighted  with  said  salt  proceeded  on  her  voyage  as  far  as  to  the 
confluence  of  the  Elk  River  with  the  Kanawha,  when  she  stranded, 
sprung  a  leak,  and  filled  with  water,  whereby  a  portion  of  the  salt 
was  wholly  lost,  and  the  balance  much  damaged  and  impaired  in 
value;  and  the  defendants  having  then  introduced  evidence  tendincr 


108  CARRIERS   OF   GOODS. 

toj)rove  that  the  water  in  the  river  was  in  good  navig;able  condition; 
that  the  boat  was  conducted  thrqugh  ihe  ordinary  channel  for  steam- 
boat navigation;  that  some  eight  or  ten  days  before  the  boat  pro- 
ceeded on  her  voyage  there  was  a  rise  of  Elk  River,  a  tributary  of 
the  Kanawhtu  and  the  ice  gorged  at  its  mouth,  and  a  bar  of  sand 
and  gravel  formed  in  the  channel  along  which  the  l)oat  had  to  pass, 
and  that  the  officers  and  crew  of  the  boat  were  ignorant  of  the  for: 
mation  of  the  bar  when  the  boat  stranded  upon  it,  and  that  the 
officers  and  crew  used  their  efforts  to  save  the  salt  after  the  boat 
had  so  stranded;  the  plaintiff  moved  the  Court  to  instruct  the  jury 
upon  the  law  governing  the  case :  Whereupon  the  Court  instructed  the 
jury  that  if  they  believed  from  the  evidence  that  the  boat  was  stranded 
by  running  upon  a  bar  previously  formed  in  the  ordinary  channel  of 
the  river,  but  that  the  existence  of  the  bar  might  by  human  fore- 
sight and  diligence  have  been  ascertained  and  avoided,  although  the 
navigators  or  those  in  charge  of  the  boat  were  ignorant  of  its  exist. 
ence  at  the  time  the  boat  ran  upon  it,  the  defendants  were  liable  for 
the  loss  (if  any)  of  the  salt  freighted  by  them  on  the  boat  occa- 
sioned by  its  stranding;  although  the  jury  might  be  satisfied  that 
the  defendants,  after  the  boat  stranded,  used  all  the  means  within 
i  their  power  and  control  to  preserve  the  freight  on  board  the  boat 
,  from  being  lost  or  injured. 

Among  the  strongest  authorities  cited  in  behalf  of  thd  plaintiffs 
in  error  are  the  cases  of  Smyrl  v.  Kiolon,  2  Bailey's  B.  421,  and 
Williams  v.  Grant,  1  Conn.  K.  487.     In  the  former  it  was  held  that 
a  loss  occasioned  by  a  boat's  running  on  an  unknown  ''  snag  "  in  the 
usual  channel  of  the  river,  is  referrible  to  the  act  of  God,  and  that 
the  carrier  will  be  excused;  and  in  the  latter  it  was  said  that  strik- 
ing upon  a  rock  in  the  sea  not  generally  known  to  navigators,  and 
actually  not  known  to  the  master  of  the  ship,  is  the  act  of  God. 
And  other  authorities  go  so  far  as  to  assert  that  if  an  obstruction 
be  secretly  sunk  in  the  stream,  and,  not  being  known  to  the  carrier, 
his  boat  fcjunder,  he  would  be  excused.     Tlie  last  proposition  stands 
condemned  by  the  leading  cases,  both  English  and  American.     In 
the  case  of  Forward  v.  Pittard,   1  T.   K.   27  [97 J   Eord  .Mansfield 
says,  that  "to  prevent  litigation,  collusion,  and   the  necessity  of 
going  into  circumstances  impossible  to  be  unravelled,  the  law  pre- 
sumes against  the  carrier,  unless  he  shows  it  was  done  by  the  king's 
enemies,  or  by  such  an  accident  as  could  not  liappen  by  tlie  inter- 
vention of  man,   as  sU)rms,   lightning,    and  tempests."     Tlie  same 
doctrine  is  strongly  stated  in  M'Arthur  v.  Sears,  21  Wend.  R.  lOG, 
where  it  is  sai<l  tliat  "  no  matter  wliat  degree  of  prudence  may  be 
exercised  by  thr-  carrier  and  liis  servants;  altliough  the  delusion  by 
which  it  is  baffled,  or  the  force  by  which  it  is  overcome,  l)e  inevi- 
table;   yet   if   it  bo   the   result  of  liuman   means,    the  carrier   is 
responsible." 

Tliese  cases  clearly  rcstriet  the  excuse  of  the  carrier,   fur  losses 


carrier's  liability.  109 

occasioned  by  obstructions  in  the  stream,  to  such  obstructions  as  are 

wholly  the  result  of  natural  causes.  And  the  cases  in  which  the 
carriers  have  been  exonerated  from  losses  occasioned  by  such  obstruc- 
tions as  Smyrl  v.  Niolon,  and  Williams  v.  Grant,  before  mentioned, 
will,  I  think,  upon  examination,  be  found  to  be  cases  in  which 
either  the  bills  of  lading  contained  the  exception  "  of  the  perils  of 
the  river,"  or  in  which  that  exception  has  been  confounded  with  the 
exception  of  the  "act  of  God,"  In  the  case  of  M'Arthur  ?'.  Sears, 
a  distinction  between  the  two  phrases  is  pointed  out.  It  is  shown 
that  the  exception  "of  dangers  of  perils  of  the  sea  or  river,"  often 
contained  in  bills  of  lading,  are  of  much  broader  compass  than  the 
words  "  act  of  God ; "  and  the  case  of  Gordon  v.  Buchanan,  5  Yerg. 
K.  71,  is  cited  with  approbation,  in  which  it  is  said  that  "  many  of 
the  disasters  which  would  not  come  within  the  definition  of  the  act 
of  God  would  fall  within  the  former  exception;  such,  for  instance, 
as  losses  occasioned  by  hidden  obstructions  in  the  river  newly 
placed  there,  and  of  a  character  that  human  skill  and  foresight 
could  not  have  discovered  and  avoided." 

In  a  note  to  the  case  of  Coggs  v.  Barnard,  in  the  American  edition 
of  Smith's  Leading  Cases,  43  Law  Lib.  180,  the  American  decisions 
are  collated  and  reviewed,  and  a  definition  is  given  to  the  expression 
*^act  of  God,"  which  expresses,  I  think,  with  precision,  its  true 
meaning.  The  true  notion  of  the  exception  is  there  held  to  be 
*' those  losses  that  are  occasioned  exclusively  by  the  violence  of 
nature ;  by  that  kind  of  force  of  the  elements  which  human  ability 
could  not  have  foreseen  or  prevented;  such  as  lightning,  tornadoes, 
sudden  squalls  of  wind."  "The  principle  that  all  human  agency 
is  to  be  excluded  from  creating  or  enterin£_  into  the  cause  of  mis- 


chief,  in  order  that  it  may  be  deemed  the  act  of  God,  shuts  out  those 
cases  where  the  natural  object  in  question  made  a  cause  of  mischief, 
solely  by  the  act  of  the  captain  in  bringing  his  vessel  into  that 
particular  position  where  alone  the  natural  object  could  cause  mis- 
chief: rocks,  shoals,  currents,  etc.,  are  not,  by  their  own  nature 
and  inherently,  agents  of  mischief  and  causes  of  danger,  as  tempests, 
lightning,  etc.,  are." 

The  act  of  God  which  excuses  the  carrier  must  therefore,  I  think,  \  V*^ 
be  a  direct  and  violent  act  of  nature.  ^ 

The  rule,  it  is  insisted,  is  a  harsh  one  upon  the  carrier,  and  it  is 
argued  that  the  Court  should  be  slow  to  extend  it  further  than  it  is 
fully  sustained  by  the  cases.  However  harsh  the  rule  may  at  first 
appear  to  be,  it  has  been  long  established,  and  is  well  founded  on 
maxims  of  public  policy  and  convenience;  and,  viewing  the  carrier 
in  the  light  of  an  insurer,  it  is  of  the  utmost  importance  to  him,  as 
well  as  to  the  public  who  deal  with  him,  that  the  acts  for  which  he 
is  to  be  excused  should  have  a  plain  and  well-defined  meanin"-. 
When  it  is  understood  that  no  act  is  within  the  exception,  except 
such  a  violent  act  of  nature  as  implies  the  entire  exclusion  of  all 


110  CARRIERS   OF   GOODS. 

human  agency,  the  liabilities  of  the  carrier  are  plainly  marked  out, 
and  a  standard  is  fixed  by  which  the  extent  of  the  compensation  to 
indemnify  him  for  his  risks  can  be  readily  measured  and  ascertained. 
The  rule,  too,  when  so  understood,  puts  to  rest  many  perplexing 
questions  of  fact,  in  the  litigation  of  which  the  advantage  is  always 
on  the  side  of  the  carrier.  Under  this  rule  the  carrier  is  not  per- 
mitted to  go  into  proofs  of  care  or  diligence,  and  the  owner  of  the 
goods  is  not  required  to  adduce  evidence  of  negligence  till  the  loss 
in  question  is  shown  to  be  the  immediate  result  of  an  extraordinary 
convulsion  of  nature,  or  of  a  direct  visitation  of  the  elements, 
against  which  the  aids  of  science  and  skill  are  of  no  avail. 

So  understanding  the  law,  I  do  not  perceive  how  the  defendants 
in  error  could  have  been  prejudiced  by  the  instruction  comi)lained 
of,  and  am  of  opinion  to  affirm  the  judgment. 

Juihjment  affirmed.^ 


EAILRUAD  CO.    v.   EEEVES. 
10  Wall.  176.     1SG9. 

In  error  to  the  Circuit  Court  for  the  Western  District  of  Ten- 
nessee, the  case  being  this:  — 

Keeves  sued  the  Memphis  and  Charleston  Railroad  Company  as  a 
common  carrier  for  damage  to  a  quantity  of  tobacco  received  by  it 
for  carriage,  the  allegation  being  negligence  and  want  of  due  care. 
The  tobacco  came  by  rail  from  Salisbury,  North  Carolina,  to  Chat- 
tanooga, Tennessee,  reaching  the  latter  place  on  the  5th  of  3Lirrh, 
1867.  At  Chattanooga  it  was  received  by  the  Memphis  and  Charles- 
ton Railroad  Company  on  the  5th  of  IMarcli,  and  reloaded  into  two 
of  its  cars,  about  five  o'clock  in  the  afternoon. 

The    Memphis    and    Charleston    Railroad    track    extends    from 

1  In  Gordon  v.  Little,  8  Serg.  &  Rawle,  533,  it  was  litld  that  a  general  usago, 
I  Boftcning  the  responsihility  of  carriers  on  tlic  wt-stcrn  waters,  waa  achnissihU'  in  tlu-ir 
(Icfence.  This  was  the  ra.se  of  a  keel-boat  sailing  from  Titt-shiirg,  in  Pennsylvania,  to 
Hopkinsville,  Kentucky.  But  no  olfer  of  that  kind  was  made  in  tlie  case  at  l.ar  ;  and 
it  may  be  very  qtiestionable,  since  the  late  cases  in  this  court  denying  all  restriction 
even  by  notice,  whether  such  a  custom,  which  must  arise  from  the  management  of 
carricn),  would  Ijc  su-stainable  in  true  i>olicy,  owing  to  the  ojicning  which  it  gives  for 
fraud  and  collusion,  etc.  In  Aymar  v.  Astor,  Ixfore  cited,  and  The  Schooner  Keesidc, 
'2  Sumn.  507,  660,  a  general  commercial  custom  enlarging  the  phrase  *'  iK'rilsor  dangers 
of  the  seas,"  in  a  bill  of  lading,  so  as  to  comprehend  causes  of  lo.ss  beyond  their  legal 
imiwrt,  wasd«rnied.  Mr.  Justice  Story,  in  the  last  ca.se,  verj-  i)roperly  expresses  a 
general  reluctance  to  the  recejition  of  such  i>roof  in  cases  where  it  has  not  heretofore 
been  opplied.  Ho  finally  rejected  it,  because  it  worked  a  contradiction  of  the  written 
fHfTwment.  Tuniey  v.  Wilson,  7  Yerg.  340,  S.  P.  Hut  see  Cherry  v.  Holly,  14 
Wendell,  UO,  and  BarlMrr  i?.  IJrace,  3  Conn.  U.  9.  Also  Lawrence  r.  M'Gregor,  1 
Wright,  11>3.     I'crCowcn,  J.,  in  McArthurw.  Sear«,  21  W.nd.  l'.>0. 


cakeier's  liability.  Ill 

Memphis  to  Stevenson,  Alabama,  a  point  west  of  Chattanooga,  on 
the  Nashville  and  Chattanooga  Railroad.  Between  Chattanooga 
and  Stevenson,  by  a  contract  between  the  two  companies,  the  trains 
of  the  Memphis  and  Charleston  road  were  drawn  by  engines  belong- 
ing to  the  last-named  road,  an  agent  of  the  road  being  at  Chattanooga 
and  receiving  freight  and  passengers  there  for  Memphis. 

One  Price,  who  as  agent  of  Reeves  was  attending  and  looking 
after  the  tobacco  along  the  route,  testified  (though  his  testimony  on 
this  point  was  contradicted)  that  the  agent  of  the  company  at  Chat- 
tanoog^i  promised  that,  if  the  bills  were  brought  over  in  time,  the 
tobacco  should  go  forward  at  six  o'clock  that  evening;  and  shortly 
before  that  time  informed  him  that  the  bills  had  come  over,  and 
assured  him  that  the  tobacco  would  go  off  at  that  hour.  It  did  not 
do  so,  though  he.  Price,  the  agent,  supposing  that  it  would,  went 
on  by  a  passenger  train  and  so  could  no  longer  look  after  the 
tobacco.  By  the  time-tables  which  governed  at  the  time  the  for- 
warding of  freight,  goods  received  during  one  day  were  forwarded 
the  next  morning  at  5.45  a.m.,  and  at  that  time  the  train  on  which 
the  tobacco  in  question  was  placed  went  off.  This  train,  however, 
found  the  road  obstructed  by  rocks  that  had  fallen  during  the  night 
and  had  to  return,  and,  in  consequence  of  information  of  the  washing 
away  of  a  bridge  on  the  road,  had  to  remain  at  Chattanooga.  Chat- 
tanooga is  built  on  low  ground,  on  the  Tennessee  River,  which,  a 
short  distance  west  of  it,  runs  along  the  base  of  Lookout  Mountain. 
On  the  5th  of  March  there  had  been  heavy  rains  for  some  weeks, 
and  the  river  had  been  rising  and  was  very  high.  Freshets  of  the 
years  1826  and  1847,.  the  highest  ever  remembered  previous  to  one 
now  to  be  spoken  of,  or  of  which  there  was  any  tradition,  had  not 
risen  by  within  three  feet  as  high  as  the  level  of  the  railroad  track 
in  the  station  where  the  cars  containing  the  tobacco  were  placed,  on 
their  coming  back  to  Chattanooga,  after  their  unsuccessful  attempt 
to  go  forward. 

The  river  rose  gradually  until  the  evening  of  the  1th  (Thurschnj), 
at  which  time  it  reached  the  high-water  mark  of  1847.  That  night 
it  rose  an  average  of  four  inches  an  hour  from  7  p.  m.  to  6.30  a.  m. 
of  the  8th  of  March,  and  it  continued  to  rise  until  about  2  p.  m.,  of 
Sunday,  the  10th  of  March.  On  Friday,  at  1  p.  m.,  the  engines 
standing  on  the  tracks  were  submerged  so  that  their  lower  fire- 
boxes were  covered.  On  Saturday,  at  8  p.  m.,  the  engines  and  cars 
were  submerged  ten  feet  or  more,  and  the  freight  in  question  was 
thus  damaged.  Had  it  gone  off  on  the  evening  of  the  5th  it  would 
not  have  been  damaged.  A  freight  train  did  leave  Chattanooga 
going  towards  Mempliis  on  that  evening,  but  it  carried  freight  of 
the  Nashville  and  Chattanooga  road  only,  and  none  for  the  road  of 
the  defendant.  Four  or  five  days  elapsed  from  the  time  when  the 
water  began  to  come  up  into  the  town,  before  it  was  so  high  as  to 
submerge  the  cars   and  injure  the  freight.     No  one  expected  the 


112  CAKRIEKS   OF   GOODS. 

water  would  rise  as  it  did,  because  it  rose  full  tifteeu  feet  higher 
than  had  ever  before  been  known.  The  rise  was  at  first  gradual, 
and  from  the  direction  of  Lookout  Mountain,  by  backing;  but  after- 
wards it  came  suddenly  from  the  direction  of  the  Western  and 
Atlantic  road,  opposite  to  its  former  direction,  and  then  rose  very 
rapidly.  Although  on  the  Gth  the  river  was  getting  out  of  its 
banks,  there  was  no  apprehension,  up  to  the  night  of  the  7th,  that 
the  water  would  submerge  the  town.  During  the  night  of  the  7th 
merchants  removed  their  goods,  and  one  Phillips,  who  that  night 
removed  his  to  the  second  story  of  a  building  standing  on  ground 
no  higher  than  the  depot,  saved  them.  The  water  rose  into  his 
building  on  the  morning  of  the  8th.  The  jjeojtle  finally  fled  to  the 
hills,  and  there  ivas  a  universal  destruction  of  propertij  as  well  of 
indii'iduals  as  of  railroads  passinr/  through  the  city.  The  waters 
indeed  were  so  high  and  the  flood  finally  so  unexpected  that  the 
mayor  broke  oi^en  railroad  cars  and  took  provisions  wliich  were  in 
process  of  transportation,  to  feed  the  famishing  population.  The 
cars  in  which  the  tobacco  was,  were  standing  on  the  highest  ground 
in  the  region  of  the  station.  There  were  roads  in  other  directions, 
beside  the  road  over  which  the  rock  had  fallen,  physically  travers- 
able by  the  cars  which  had  the  tobacco;  but  there  were  difliculties 
of  various  kinds  in  going  on  them,  which  the  agents  considered 
amounted  to  a  bar  to  try  to  use  them. 

;Mr.  Justice  Millek.      ........ 

We  are  of  opinion,  then,  that  both  the  refusal  to  charge  as  re- 
quested and  the  charge  actually  given  are  properly  before  us 
for  examination.  As  regards  the  first,  we  will  only  notice  one 
of  the  rejected  instructions,  the  fourth.  It  was  prayed  in  these 
words :  — 

"When  the  damage  is  shown  to  have  resulted  from  the  immediate 
act  of  God,  such  as  a  sudden  and  extraordinary  flood,  the  carrier 
would  be  exempt  from  liability,  unless  the  plaintiff  shall  prove  that 
the  defendant  was  guilty  of  some  negligence  in  not  providing  for 
the  safety  of  the  goods.  That  he  could  do  so  must  be  proven  by 
the  jdaintifT,  or  must  api)ear  in  tlie  facts  of  the  case." 

It  is  hard  to  see  how  the  soundness  of  this  projjosition  can  be 
made  clearer  than  by  its  bare  statement.  A  common  carrier  assumes 
all  risks  cxcf'])t  those  caused  by  the  act  of  God  and  the  public  eneinyT 
One  f>f  tlie  instances  alwa^'s  mentioned  ])y  tlic  olomentary  writers 
of  loss  by  the  act  o f  (iod  is  the  case  of  loss  by  Hood  and  storm. 
ypw,  when  it  is  sliown  that  tlie  damage  resulted  from  tliis  cause 
iTiini<'fliritelVj_hc  is  excusod. 


What  is  to  make  liim  liable  after  this  ?  No  question  of  his  negli- 
gence arises  unless  it  is  made  by  tlie  other  jiarty.  It  is  not  neces- 
sary for  him  to  prove  that  tlie  cause  was  such  as  releases  him,  and 
then  to  prove  alfirmaiively  that  he  did  not  contribute  to  it.  If, 
after  he  has  cxcusetl  liimself  by  sliowing  the  presence  of  the  over- 


cakrier's  liability.  113 

poweriu.g^  cause,  it  is  charged  that  his  negligence  contributed  to  the 
loss,  the  proof  of  this  must  come  from  those  who  assert  or  rely 
on  it. 

The  testimony  in  the  case,  wholly  uncontradicted,  shows  one  of 
the  most  sudden,  violent,  and  extraordinary  floods  ever  known  in 
that  part  of  the  country.  The  tobacco  was  being  transported  from 
Salisbury,  North  Carolina,  to  Memphis,  on  a  contract  through  and 
by  several  railroad  companies,  of  which  defendant  was  one.  At 
Chattanooga  it  was  received  by  defendant,  and  fifteen  miles  out  the 
train  was  arrested,  blocked  by  a  land-slide  and  broken  bridges,  and 
returned  to  Chattanooga,  when  the  water  came  over  the  track  into 
the  car  and  injured  the  tobacco. 

The  second  instruction  given  by  the  court  says  that  if,  while  the 
cars  were  so  standing  at  Chattanooga,  they  were  submerged  by  a 
freshet  which  no  human  care,  skill,  and  prudence  could  have 
avoided,  then  the  defendant  would  not  be  liable;  but  if  the  cars 
were  brought  within  the  influence  of  the  freshet  by  the  act  of 
defendant,  and  if  the  defendant  or  his  agent  had  not  so  acted,  the 
loss  would  not  have  occurred,  then  it  was  not  the  act  of  God,  and 
defendant  would  be  liable.  The  fifth  instruction  given  also  tells 
the  jury  that  if  the  damage  could  have  been  prevented  by  any 
means  within  the  power  of  the  defendant  or  his  agents,  and  such 
means  were  not  resorted  to,  then  the  jury  must  find  for  the  plaintiff. 
In  contrast  with  the  stringent  ruling  here  stated,  and  as  expres- 
sive of  our  view  of  the  law  on  this  point,  we  cite  two  decisions  by 
courts  of  the  first  respectability  in  this  country. 

In  Morrison  v.  Davis  &  Co.,  20  Pennsylvania  State,  171,  goods 
being  transported  on  a  canal  were  injured  by  the  wrecking-  of  the 
boat,  caused  by  an  extraordinary  flood.  It  was  shown  that  a  lame 
horse  used  by  defendants  delayed  the  boat,  which  would  otherwise 
have  passed  the  place  where  the  accident  occurred  in  time  to  avoid 
the  injury.  The  court  held  that  the  proximate  cause  of  the  disaster 
was  the  flood,  and  the  delay  caused  by  the  lame  horse  the  remote 
cause,  and  that  the  maxim,  causa  jiroxima,  non  remota  spectatur, 
applied  as  well  to  contracts  of  common  carriers  as  to  others.  The 
court  further  held,  that  when  carriers  discover  themselves  in  peril 
by  inevitable  accident,  the  law  requires  of  them  ordinary  care,  skill, 
and  foresight,  which  it  defines  to  be  the  common  prudence  which 
men  of  business  and  heads  of  families  usually  exhibit  in  matters 
that  are  interesting  to  them. 

In  Denny  v.  New  York  Central  Railroad  Co.,  1.3  Gray,  481,  the 
defendants  were  guilty  of  a  negligent  delay  of  six  days  in  trans- 
porting wool  from  Suspension  Bridge  to  Albany,  and  while  in  their 
depot  at  the  latter  place  a  few  days  after,  it  was  submerged  by  a 
sudden  and  violent  flood  in  the  Hudson  River.  The  court  says  that 
the  flood  was  the  proximate  cause  of  the  injury,  and  the  delay  in 
transportation  the  remote  one  \  that  the  doctrine  we  have  just  stated 


114  CARRIERS   OF   GOODS. 

governs  the  liabilities  of  common  carriers  as  it  does  other  occupations 
and  pursuits,  and  it  cites  with  approval  the  case  of  Morrison  v. 
Davis  &  Co. 

Of  the  soundness  of  this  principle  we  are  entirely  convinced,  and 
it  is  at  variance  with  the  general  groundwork  of  the  court's  charge 
in  this  case. 

As  the  case  must  go  back  for  a  new  trial,  there  is  another  error 
which  we  must  notice,  as  it  might  otherwise  be  repeated.  It  is  the 
third  instruction  given  by  the  court,  to  the  effect  that  if  the  defend- 
ant had  contracted  to  start  with  the  tobacco  the  evening  before,  and 
tlie  jury  believe  if  he  had  done  so  the  train  would  have  escai^l 
injury,  then  the  defendant  was  liable.  Even  if  there  had  been  such 
a  contract,  the  failure  to  com]dy  would  have  been  only  the  remote 
cause  of  the  loss. 

But  all  the  testimony  that  was  given  is  in  the  record,  and  we  see 
nothing  from  which  the  jury  could  have  inferred  any  such  contract, 
or  which  tends  to  establish  it,  and  for  that  reason  no  such  instruc- 
tion should  have  been  given. 

Judgvient  reversed  and  a  new  trhil  ordered.'^ 


b.  Act  of  Public  Enemy. 

MORSE  V.    SLUE. 

'  King's  Bench.    1  Vent.  238.     1672. 

The  case  was  argiied  two  several  terms  at  the  bar,  by  Mr.  Holt 
for  the  plaintiff,  and  Sir  Francis  Winnington  for  the  defendant,  and 
Mr.  Molloy  for  the  jdaintiff,  and  ]\Ir.  Walloi)  for  the  defendant;  and 
by  the  opinion  of  the  whole  Court,  judgment  was  given  this  term 
for  tlie  plaintiff. 

Hale  delivered  the  reasons  as  followeth. 

First,  by  the  Admiral  Civil  Law  the  master  is  not  chargeable  pro 
dnmno  ffifali,  as  in  case  of  pirates,  storm,  etc.,  but  where  there  is 
any  negligence  in  him  he  is. 

Secondly,  This  case  is  not  to  be  measured  by  the  rules  of  the 
Admiral  Law,  })ecause  tlie  sliip  was  Infrti  arpus  cdinifntus. 

Then  the  first  reason  wherefore  the  master  is  liable  is,  because  he 
takes  a  reward;  and  the  usage  is,  that  half  wages  is  jiaid  him  before 
he  goes  out  of  the  country. 

Serondly,  If  tlie  master  would,  lie  miglit  Iiave  made  a  caution 
for  liimself,  whirh  he  omitting  and  taking  in  the  goods  generally, 

'  jifc. :  Fox  V.  I'lohton  &c.  K.  Co.,  148  Moss.  220.  Contra :  Condict  v.  Graud  Trunk 
B.  Co.,  64  N.  Y.  500. 


cakriek's  liability.  115 

he  shall  answer  for  what  happens.  There  was  a  case  (not  long 
since)  when  one  brought  a  box  to  a  carrier,  in  which  there  was  a 
great  sum  of  money,  and  the  carrier  demanded  of  the  owner  what 
was  in  it;  who  answered,  that  it  was  tilled  with  silks  and  such  like 
goods  of  mean  value;  upon  which  the  carrier  took  it,  and  was 
robbed.  And  resolved  that  he  was  liable.  But  if  the  carrier  had 
told  the  owner  that  it  was  a  dangerous  time,  and  if  there  were 
money  in  it,  he  durst  not  take  charge  of  it;  and  the  owner  had 
answered  as  before,  this  matter  would  have  excused  the  carrier. 

Thirdly,  He  which  would  take  off  the  master  in  this  case  from  the 
action  must  assign  a  difference  between  it  and  the  case  of  a  hoy- 
man,  common  carrier  or  innholder. 

'T  is  objected,  That  the  master  is  but  a  servant  to  the  owners. 

Answer,  The  law  takes  notice  of  him  as  no  more  than  a  servant. 
'T  is  known,  that  he  may  impawn  the  ship  if  occasion  be,  and  sell 
bona  periUira  ;  he  is  rather  an  oflScer  than  a  servant.  In  an  escape 
the  jailer  may  be  charged,  though  the  sheriff  is  also  liable,  for 
respondeat  superior.  But  the  turnkey  cannot  be  sued,  for  he  is  but 
a  mere  servant :  by  the  civil  law  the  master  or  owner  is  chargeable 
at  the  election  of  the  merchant. 

'T  is  further  objected.  That  he  receives  wages  from  the  owners. 

Answer,  In  effect  the  merchant  pays  him,  for  he  pays  the  owners 
freight,  so  that  'tis  but  handed  over  by  them  to  the  master;  if  the 
freight  be  lost,  the  wages  are  lost  too,  for  the  rule  is  freight,  is 
the  mother  of  wages:  therefore,  though  the  declaration  is,  that  the 
master  received  wages  of  the  merchant,  and  the  verdict  is,  that 
the  owners  pay  it,  't  is  no  material  variance. 

Objection,  'T  is  found,  that  there  were  the  usual  number  of  men 
to  guard  the  ship  ? 

Answer,  True,  for  the  ship,  but  not  with  reference  to  the  goods, 
for  the  number  ought  to  be  more  or  less  as  the  port  is  dangerous, 
and  the  goods  of  value,  33  H.  6,  1.  If  rebels  break  a  jail,  so  that  the 
prisoner  escape,  the  jailer  is  liable;  but  is  otherwise  of  enemies ;  so 
the  master  is  not  chargeable  where  the  ship  is  spoiled  by  pirates. 
And  if  a  carrier  be  robbed  by  a  hundred  men,  he  is  never  the  more 
excused.     Ante. 


SOUTHERN  EXPRESS   CO.   v.    WOMACK. 
1  Heisk.  (Tenn.),  256.     1870. 

R.  McEarland,  S.  J.,  delivered  the  opinion  of  the  Court. 
_  This  is  an  action  brought  by  defendant  in  error  against  the  plain- 
tiff in  error  as  a  common  carrier,  for  failing  to  carry  and  deliver  a 
quantity  of  household  goods,  notes,  bonds,  checks,  etc.,  according 


116  CAKKIERS   OF   GOODS. 

to  contract,  from  Prospect  Depot,  in  Virginia,  to  Bristol,  Tennessee; 
and  in  another  count  for  failing  to  deliver  said  goods  at  Lynchburg, 
Virginia. 

The  plaintiff  recovered  in  the  Court  below,  and  a  new  trial  being 
refused  the  defendant,  an  appeal  in  error  has  been  presented  to  this 
Court. 

A  number  of  pleas  were  filed.  Upon  some  of  these  there  was 
issue,  and  to  others  a  demurrer  was  sustained.  We  do  not  deem  it 
necessary  to  consider  the  questions  raised  by  these  pleadings,  for 
in  our  opinion,  all  the  defences  therein  indicated,  so  far  as  they  are 
good  in  law,  might  have  been  made  under  the  first  plea,  wliich  is 
non  aasianjjslt.  We  will,  therefore,  proceed  to  inquire  whether  the 
jjlaintiff  in  error  had  the  full  benefit  of  all  the  defences  to  which  he 
was  entitled  under  the  general  issue. 

The  proof  tends  to  show  the  following  state  of  facts :  The  plain- 
tiff in  error  was  a  common  carrier,  in  the  full,  legal  sense  of  the 
term,  from  Richmond,  in  A'irginia,  to  Bristol,  Tennessee,  by  way  of 
L3'nchburg.  Their  mode  of  transportation  was  by  railway.  Pros- 
pect Depot  was  a  way  station  between  Richmond  and  Lynchburg. 
About  the  middle  of  March,  1865,  the  boxes  containing  the  goods 
in  question  were  delivered  to  R.  V.  Davis,  the  agent  of  the  Com- 
pany at  Prospect  Depot,  for  transportation  to  Bristol,  the  boxes 
being  properly  marked.  Davies  gave  Mrs.  Womack,  the  wife  of 
the  defendant  in  error,  a  receipt  simply  acknowledging  the  receipt 
of  the  goods  for  transportation,  and  received  from  her  the  amount 
of  charges  for  transporting  the  goods  to  Lynchburg,  in  Confed- 
erate money,  he  not  being  authorized  to  collect  the  charges  any 
further. 

The  proof  further  shows  that  the  railway  trains  upon  which  the 
plaintiffs  in  error  carried  freights,  continued  to  pass  dail^-  in  tlie 
direction  of  Lynchlnirg,  with,  perhaps,  some  occasional  interrup- 
tion, until  near  the  7tli  of  April.  That,  for  the  first  four  days  after 
the  goods  were  received,  Davis  carried  them  to  the  track  of  the 
railroad,  as  the  train  passed,  and  tendered  them  to  the  "messenger," 
as  he  is  called,  who  was  the  agent  of  the  comjiany,  and  whose  duty 
it  was  to  receive  the  goods  upon  the  train,  and  forward  them.  That 
the  messenger  declined  to  take  the  goods  on,  alleging  that  hi-  had 
no  room  for  them,  but  would  try  to  take  them  next  day.  After  tliis, 
Davis  continued  each  day  for  some  weeks  to  api)ly  to  the  messenger 
to  takf  the  goods,  but  was  "i)ut  off"  from  day  to  day,  with  substan- 
tially the  same  reply.  That  towards  tho  7th  of  Ajiril,  one  Thomas 
Agee,  who  had  hauled  tho  goods  to  tho  depot,  and  who  was  the 
friend  of  the  defendant  in  error,  finding  that  tlio  goods  were  still  in 
the  depot,  and  that  hostile  armies  were  approacliing,  pro])Osed  to 
Davis  to  take  charge  of  the  goods,  and  haul  them  away,  and  taluf 
care  of  them,  but  this  proposal  was  refnsod  liy  Davis.  On  the  7th 
of  April  the  depot  was  captured  by  tlie  United  States  forces,  and 


carrier's  liability.  117 

the  goods  captured  or  destroyed,  except  a  small  quantity  that  Avere 
afterwards  recovered  by  the  defendants  in  error. 

The  proof  for  the  plaintiff  in  error  shows  that,  at  the  time  the 
goods  were  received,  Prospect  Depot  was  inside  the  military  lines  of 
the  Confederate  forces,  and  so  remained  until  the  7th  of  April. 
That  the  line  of  railroad  referred  to  was  not  owned  by  them,  but 
that  they  hired  from  the  railroad  company  a  car  which  they  used 
on  each  trip  for  the  transportation  of  their  freight.  The  proof 
further  shows  that  between  the  16th  of  March  and  the  17th  of  April, 
large  quantities  of  freight  were  sent  from  Richmond  and  other 
points  in  the  direction  of  Lynchburg;  that  the  Confederate  military 
forces  had  the  preference  upon  the  road,  and  on  some  occasions  the 
^'Express  car"  was  taken  from  the  plaintiff  in  error,  for  the  use  of 
the  military,  and  the  proof  renders  it  probable  that  the  express  cars, 
during  the  period,  were  loaded  to  their  capacity,  when  going  in  the 
direction  of  Lynchburg,  before  they  reached  Prospect  Depot. 

It  was  further  proven  by  the  plaintiff  in  error,  that  they  gener- 
ally used  a  printed  form  of  receipt  which  they  gave  when  goods 
were  delivered  to  them,  but  at  the  time  of  this  transaction,  the 
agent,  Davis,  had  none  of  these  blanks  on  hand. 

It  was  also  proved  by  them,  that  when  Mrs.  Womack  was  asked 
what  the  boxes  contained,  she  replied  that  they  contained  ''beds, 
bed-clothing,  wearing  apparel,"  etc.,  but  did  not  disclose  that  they 
contained  bonds,  notes,  or  anything  of  that  character,  the  question 
being  pressed  upon  her  no  further. 

Upon  this,  various  questions  are  made  and  argued  as  to  the  action 
of  the  Court  below. 

4.  Are  the  United  States  troops,  who,  it  is  alleged,  destroyed 
these  "goods,  to  be  regarded  as  "the  public  enemi"es,"  or  "the  ene^ 
mies  of  the  country,  in  the  sense  of  the  law,  so  as  to  excuse  the" 
plaintiff'  in  error  for  the  loss  of  the  goods  caused  by  these  acts, 
without  fault  on  the  part  of  the  agents  of  the  company?  His  Honor, 
the  Circuit  Judge,  decided  this  proposition  in  the  negative,  and 
said :  "  The  United  States  army  or  troops  were  not  enemies  to  the 
Government,  or  public  enemies;  they  were  public  friends  and 
friends  to  the  Government;  there  was  but  one  Government  in  the 
United  States,  and  that  was  the  United  States  Government,"  Con- 
sequently the  United  States  troops,  under  General  Stoneman,  a 
United  States  General,  and  commanding  for  the  United  States, 
-were  not  the  enemies  of  the  United  States  Government.  His 
Honor  further  told  the  jury  "  that  the  Confederate  States  never  were 
recognized  by  any  Government  as  a  Government  dejure  or  de  facto. 
Our  Supreme  Court  recognized  them  as  belligerents  so  as  to  regulate 
criminal  intent  in  robbery  and  some  other  felonies,  but  no  further. 
The  army  of  the  so-called  Confederate  States  was  an  unlawful  com- 
bination, nothing   but  a  mob,   however  huge  its  proportions   may 


lis  CARRIERS   OF   GOODS. 

have  been;  consequently  if  the  goods  were  destroyed  by  the  United 
States  troops,  that  wouki  not  exonerate  the  company." 

We  are  of  opinion  that  the  definition,  as  above  given  by  his 
Honor,  of  the  character  of  the  late  war,  and  as  to  the  status  of  the 
Confederate  Government,  is  not  correct  or  accurate;  but  the  only 
question  of  practical  importance,  is,  was  he  correct  in  holding  that 
the  United  States  troops  were  not  to  be  regarded  as  the  public 
enemy,  against  whose  acts  the  plaintiff  in  error  did  not  insure.  If 
he  was  in  error  in  this,  it  was  an  error  affecting  the  merits,  and  a 
new  trial  should  be  granted.  If,  on  the  other  hand,  he  answered 
this  question  correctly,  then  the  error  which  followed  in  giving  a 
definition  of  the  character  of  the  rebellion  —  a  definition  which  was 
unnecessary  —  was  immaterial,  and  could  not  have  prejudiced  the 
plaintiff  in  error.  The  term  ^^ public  enem}',"  or  the  ''enemy  of 
the  countr}'.  has,  in  general,  a  technical  legal  meaning.  It  is  under- 
stood to  apply  to  foreign  nations,  with  whom  there  is  open  war,  nnd^ 
to  pirates,  who  are  considered  at  war  with  all  mankind;  but  it  does 
not  include  robbers,  thieves,  or  rioters  or  insurgents,  whatever  be 
their  violence."     Story  on  Contr.,  762. 

In  England,  the  term  '"public  enemies,"  or  "the  king's  enemies," 
as  applied  to  the  law  of  treason,  has  been  held  not  to  ai^dy  to  insur- 
gents or  rebels,  they  not  being  enemies.  Hawkins'  Fleas  of  the 
Crown,  55. 

It  has  been  held  by  the  Supreme  Court  of  the  United  States,  in 
a  number  of  cases  known  as  the  Prize  Cases,  that  the  late  rebellion 
was  ''a  war"  in  the  legal  sense,  as  contra-distinguished  from  a  mere 
insurrection,  and  that  as  a  consequence  of  this  in  the  conduct  of 
the  war  during  its  pendency,  the  persons  living  upon  either  side  of 
the  line  dividing  the  contending  forces  were  to  be  regarded  a3 
enemies  of  the  other,  to  the  extent  to  authorize  the  forfeiture  of  the 
property  of  either  captured  by  the  other  ui)on  the  high  seas. 

In  the  case  of  Thorington  v.  Smith,  9  Wallace,  1,  Cliief  Justice 
Chase  classes  the  Confederate  Government  among  that  class  of  cases 
where  a  foreign  government,  at  war  with  our  own,  for  instance, 
obtains  temporary  ])Ossession  of  a  portion  of  our  country,  and  estab- 
lishes their  authority  over  it,  and  enforces  the  same  by  military 
power;  and,  referring  to  the  Confederate  Government,  says:  "Bel- 
ligerent rights  were  conceded  to  it,  and  thereafter  its  territory  held 
to  be  enemy's  territory,  and,  for  most  i)urposes,  its  inhabitants  held 
to  be  enemies." 

It  is  clear  that,  during  the  war,  the  parties  upon  each  side  treated 
each  other  as  enemies,  and  this  was  justified  by  the  laws  and  usages 
of  war. 

As  an  abstract  ])roposition,  it  rannot  be  doubted  tliat  the  United 
States  Government  was  tlie  rightful  government,  and  that  tlie  war 
was  riglitfully  prosecuted  for  the  enforeement  of  its  laws;  and  the 
attemjited  revolution  being  unsuccessful,  no  portion  of  the  citizens 


carrier's  liability.  119 

were  at  any  time  released  from  their  allegiance  to  the  rightful 
government,  however  they  may  be  excused  or  justified  in  rendering 
obedience  to  the  usurped  government,  in  civil  matters,  so  long  as 
this  obedience  might  have  been  enforced  by  actual  military  power; 
and  we  are  not  to  be  understood  as  announcing  the  proposition  that, 
in  reality,  the  United  States  Government  or  troops  were  the  public 
enemy  of  its  own  citizens  during  the  progress  of  the  war. 

But  in  construing  this  contract,  and  determining  the  rights  and 
liabilities  of  the  parties  themselves,  we  must  give  to  the  term 
*^ public  enemy,"  or  " enemy  of  the  country,"  the  meaning  that 
attached  to  it  atTlie  time  and  place  the  contract  was  made.  We 
have  seen  that  at  the  date  of  this  transaction  both  parties  resided 
within  the  military  lines  of  the  ^^Confederate  States."  We  have 
also  seen  that  at  that  time,  ''for  most  purposes,"  the  people  upon 
each  side  of  the  dividing  line  were  treated  as  the  enemies  of  the 
other.  So  that  the  term  ''  public  enemy, "  or  "  enemy  of  the  country, " 
as  understood  and  applied  by  the  contracting  parties  at  the  time, 
included  the  troops  of  the  United  States  Government,  and  that  the 
plaintiffs  in  error  are  not,  under  the  circumstances,  to  be  held  as 
insurers  against  loss  that  might  occur  by  the  act  of  the  United 
States  troops. 

Such  was  not  the  legal  import  of  the  contract  they  made,  or  its 
meaning  as  they  then  understood  it. 

It  follows,  therefore,  that  while  in  one  sense  the  proposition  of 
his  Honor  was  correct,  it  was  not  the  proper  instruction  applicable 
to  the  facts  of  the  case.  For  this  error  alone  we  reverse  the  judg- 
ment, and  remand  the  cause  for  a  new  trial. 

There  is  evidence  in  the  record,  upon  which  the  plaintiff  in  error 
might  well  have  been  held  liable  for  their  failure  to  carry  the  goods 
or  return  them  before  the  time  they  are  alleged  to  have  been 
destroyed  by  the  United  States  troops;  but  as  this  was  a  question  of 
fact,  they  were  entitled  to  have  the  case  submitted  to  the  jury  upon 
a  correct  charge.  Reverse  the  judgment. 


c.  Act  of  Shipper. 

CONGAR  V.    CHICAGO,    etc.    R.    CO. 

24  Wi8.  1.54.     1869. 

The  plaintiffs  shiipped,  by  defendant's  road,  trees  and  other 
nursery  stock  from  Whitewater,  in  this  State,  directed  to  "  luka, 
Iowa,"  the  consignees  being  resident  in  a  village  of  that  name  in 
Tama  County,  Iowa.  At  Chicago,  the  goods  were  shipped  bv  de- 
fendant's agents,  by  the  Chicago,  Burlington  &  Quincy  Eailroad  Com- 


120  CARRIERS   OF  GOODS. 

pany,  and  at  Quincy  were  transferred  to  the  Quincy  &  ■\Iissouri  Rail- 
way, by  winch  they  were  transported  to  luka,  in  Keokuk  County, 
Iowa.  In  consequence  of  this  mistake,  they  are  alU'i;ed  to  have 
becoiue  worthless,  and  this  action  was  brought  to  recover  damages. 
Certain  averments  of  the  comi)laint  and  answer  will  be  found  recited 
in  the  second  paragraph  of  the  opinion,  infra.  A  demurrer  to  the 
answer  was  sustained,  and  defendant  appealed. 

Dixo.v,  Ch.  J.  The  decision  of  the  court  below,  as  shown  by  the 
written  opinion  of  the  learned  judge  found  in  the  printed  case, 
turned  ui>on  the  point  that,  for  the  purpose  of  charging  the  company 
with  negligence  in  shipping  the  goods  over  the  wrong  road,  notice 
to  any  of  its  agents  was  notice  to  the  company.  In  other  words,  the 
court  held,  that  the  knowledge  of  the  agents  residing  in  the  State 
of  Iowa,  and  transacting  the  business  of  the  company  there,  of  a 
place  in  that  State  named  luka,  and  that  goods  destined  for  that 
place  were  to  be  deposited  at  the  nearest  station  on  the  line  of  the 
company's  road,  called  Toledo,  was  the  knowledge  of  the  company, 
so  as  to  make  the  company  responsible  for  any  injury  resulting  from 
the  mistiike  of  its  agents  residing  and  transacting  its  business  at 
the  city  of  Chicago,  in  the  State  of  Illinois,  in  forwarding  the  goods 
from  the  latter  place  by  another  railroad,  instead  of  over  the  com- 
pany's own  road,  although  such  mistake  occurred  without  any  negli- 
gence whatever  on  the  part  of  the  agents  making  it,  but  after  they 
had  tiikcn  reasonable  and  proper  care  to  ascertain  the  route  by  which 
the  goods  should  be  forwarded,  and  had  forwarded  them  in  accord- 
ance with  the  information  so  oljtained.  This,  we  think,  was  an 
,.;  ,.i;     .:  ..   ,«   .1.,    doctrine  that  notice  to  the  agent  is 


\,  -       I  notice,  to  be  bindhig  upon  the  prin- 

cllial,  must  l»e  iioli»;e  lu  the  agent  when  acting  within  the  scope  of 
),i.  :,  '.ii.v,  ;i!ii1  iiiu^t  rrliite  to  tlic  busiucss,  or,  as  most  of  the 
~  r,i  business,  in  which  he  is  engaijed.  or  is 

,  !.    by   authority  of  his    princiiial.     It 

;  igent  coming  to  him  while  he  is  con- 

c  il.  and   i"  the  courjH^oJ'  the  very  transaction 

;■  tin-  suit,  or  so  near  before  it  that  the  agent 
;  1   it.     Story  on  Agency,  §  40,  and  2 

1  I     lu.  (i.;o,  ;ui'i  /".'',  and  cases  cited.     Notice,  therefore,  to 

t  ■  .  in  Iowa,  distant  some  two  or  three  hundred  miles  from 

the  city  of  Chicago,  who  liave  distinct  duties  to  perform,  and  were 
Tint  at  all  concerned  in  the  business  of  forwarding  the  goods  from 
(  liirriiro.  was  not  such  notice  as  will  i)ind  the  comi)any  in  relation 
;  ■  tlie  same  having  been  transacted  by  other  agents, 

notice.     This  seems  very  clear  when  we  consider 
tho   roanon  and   groiind  w\m\\  which   this  <loctrine  of  constructive 

V-  • -.  ♦.,      '|M.'   '■•iiicipal  is  chargeable  with  tiie  knowledge  of  his 

•nt  is  substituted  in  his  place,  and  re])rescnts 
hiju    jii   •  ■  I'tion:   and  it  would  seem   to   be   an 


carriee's  liability.  121 

obvious  perversion  of  the  doctrine,  and  to  lead  to  most  injurious 
results,  if,  in  the  same  transaction,  the  principal  were  likewise  to 
be  charged  with  the  knowledge  of  other  agents,  not  engaged  in  it, 
and  to  whom  he  had  delegated  no  authority  with  respect  to  it,  but 
who  were  employed  by  him  in  other  and  wholly  different  departments 
of  his  business. 

The  complaint  charges  that  the  place  called  luka,  in  Tama  County, 
Iowa,  to  which  the  goods  were  intended  to  be  sent,  was  known  to 
the  agents  of  the  company  residing  and  doing  business  along  the 
line  of  its  road  in  the  State  of  Iowa,  and  that  the  station  where  such 
goods  were  to  be  deposited  was  Toledo.  The  answer  alleges  that 
the  same  place  was  unknown  to  the  officers  and  agents  of  the  com- 
pany at  Chicago;  that  they  were  informed  that  said  luka  was  situ- 
ated in  Keokuk  County,  in  the  State  of  Iowa,  and  near  the  line  of 
the  Burlington  &  Missouri  Kailroad;  that  they  examined  a  map  of 
Iowa  used  by  shippers,  and  kept  in  the  office  of  defendant,  for  the 
purpose  of  ascertaining  where  said  luka  was  situated;  and  that  said 
map  represented  said  luka  as  being  in  Keokuk  County  aforesaid. 
The  answer  further  alleges  that  the  goods  were  directed  to  "C.  E. 
Cox,  luka,  Iowa,"  without  giving  the  name  of  the  county,  or  other 
directions  to  indicate  to  what  part  of  the  State,  or  to  what  railroad 
station  in  the  State,  the  same  were  consigned,  or  by  what  line  of 
railroad  the  same  were  to  be  forwarded.  It  appears  to  this  court, 
therefore,  upon  the  pleadings  that  no  cause  of  action  for  negligence 
is  stated  against  the  company,  but  that,  if  there  was  negligence  on 
the  part  of  any  one,  it  was  upon  the  part  of  the  plaintiff  in  not  hav- 
ing marked  the  goods  with  the  name  of  the  county,  or  otherwise 
with  that  of  the  railway  station,  or  with  the  line  of  road  bx  which 
they  were  to  be  sent.  The  demurrer  to  the  answer  should,  there- 
fore, have  been  overruled;  and  the  order  sustaining  it  must  be 
reversed,  and  the  cause  remanded  for  further  proceedings,  according 
to  law. 


MILTIMORE  V.   CHICAGO,  etc.  R.  CO. 
37  Wis.  190.     1875. 

Action  for  damages  alleged  to  have  been  caused  by  the  negligence 
of  the  defendant  company  in  transporting  a  wagon  for  the  plaintiffs, 
on  its  cars  from  Janesville  to  Chicago.  The  answer  denied  negli- 
gence, and  alleged  a  special  contract  that  the  wagon  should  be  trans- 
ported Avholly  at  the  owners'  risk  in  respect  to  the  cause  from  which 
the  damage  resulted. 

The  evidence  showed  the  facts  to  be,  that  the  plaintiffs,  by  one 
Ripley,  their  agent,  applied  for  transportation  of  the  wagon  in  an 
open  or  platform  car,  as  they  desired  it  shipped  without  taking  it 


122  CARRIERS   OF   GOODS. 

apart;  that  the  price  was  agreed  upon,  ami  the  company  agreed  tliat 
it  should  be  sent  on  the  train  which  was  to  leave  the  same  evening 
at  9.15  o'clock,  provided  it  was  received  in  time,  and  that,  if  there 
was  a  flat  car  in  the  yard,  it  should  be  placed  where  he  could  run 
it  on;  that  Ripley  applied  to  the  employee  of  the  company,  whose 
dut}-  was  to  make  up  trains,  for  a  car.  who  informed  him  that  they 
would  have  a  car  placed  for  him,  and,  if  he  got  the  wagon  there 
before  5  o'clock,  they  would  help  him  load  the  wagon  upon  the  car; 
that  he  took  the  wagon  up  to  be  loaded  a  little  after  5  o'clock.  The 
employees  of  the  plaintiff  loaded  it  upon  the  car.  Two  of  the 
employees  of  the  company  went  back,  at  Ripley's  request,  after 
hours,  and  helped  load  it;  and  one  suggested  that  he  take  off  the 
wheels,  but  Ripley  said  he  could  fasten  them  so  they  would  not  roll, 
and  tied  the  wheels,  and  nailed  down  blocks  upon  the  floor  to  keep 
it  from  rolling.  The  company  gave  a  receipt  for  the  wagon  which 
contained  the  agreement  that  the  company  should  not  be  "  respon- 
sible for  loss  or  damage  to  any  .  .  .  article  whose  bulk  rendered  it 
necessary  to  transport  in  open  cars,  .  .  .  unless  it  can  be  shown 
that  such  damage  or  loss  occurred  through  negligence  or  default  of 
the  agents  of  the  company."  The  train,  with  the  car  containing  the 
wagon,  left  for  Chicago  that  evening  while  a  high  wind  was  prevail- 
ing. The  wagon,  being  in  the  condition  in  wliich  the  ])laintiff's 
agent  had  left  it,  was  blown  off  from  the  car  in  transit,  and  injured. 

The  issue  was  tried  by  the  court,  who  found  that  the  defendant 
was  negligent  in  removing  the  wagon,  during  the  prevalence  of  the 
high  wind,  without  taking  precaution  to  secure  it  to  the  car,  so  as 
to  prevent  it  from  being  blown  oil';  and  that  by  reason  of  such 
negligence  the  injury  occurred.  From  judgment  on  the  finding  the 
defendant  appealed. 

Cole,  J.  The  learned  circuit  judge  found  from  the  evidence  that 
the  defendant  company  was  guilty  of  negligence  in  removing  the 
wagon  from  Janesville,  tlie  jilace  of  shipment,  and  in  carrying  it 
forward  toward  Chicago,  its  point  of  destination,  without  taking 
the  precaution  to  secure  it  to  the  car,  so  as  to  prevent  it  from  being 
thrown  from  the  car  by  tlie  violence  of  the  wind  prevailing  at  the 
time.  Upon  this  ground  the  company  was  held  liable  for  the  injury 
to  the  wagon  upon  being  l)lown  off  the  car. 

We  feel  constrained  to  dissent  from  this  view  of  the  case.  The 
evidence  shows,  beyond  all  doubt  or  question,  that  the  plaintiffs 
themselves  chose  an  open  or  jdatform  car  upon  which  to  transjtort 
the  wagon  to  Chicago.  They  ilid  not  wisli  to  have  the  wag(jn  taken 
apart  ho  tliat  it  could  he  transported  in  a  box  car,  but  eliose  the 
platform  car,  upon  which  the  wagon  could  be  carried  standing,  as 
the  cheayKT  mode  of  conveyance.  Tlio  company  certainly  was  not. 
at  ■'  "  r  this  manner  of  transporting  tlie  wagon.     The  evideneo 

cl«-  '.  s  that  the  plaintiffs  assumed  the  labor  and  responsibility 

of  loading  the  wagon.     Ripley  was  told  when  he  bargained  for  the 


carrier's  liability.  123 

car,  by  the  agents  of  the  company,  that  if  he  got  the  wagon  to  the 
cars  before  five  o'clock,  they  would  help  him  load  it,  but  if  he  got 
there  after  that  time,  he  would  find  his  car  by  the  freight-house 
platform,  upon  which  to  place  the  wagon.     He  got  to  the  freight 
depot  late,  but  met  a  couple  of  the  workmen  coming  away,  who 
went  back  and  aided  him  in  loading  the  wagon.     But  Ripley  him- 
self took  the  entire  charge  and  responsibility  of  loading  the  wagon, 
as  it  was  understood  he  would  do,  and  of  securing  it  to  the  car. 
Whatever  means  and  appliances  he  deemed  necessary  and  proper  to 
be  used  to  secure  the  property  while  in  transit,  he  used,  or  might 
have  used,  without  the  control  or  interference  of  any  one.     The  state 
of  the  weather,  the  nature  of  the  property,  its  exposure  to  violent 
winds,  he  should  have  considered  and  provided  for.     It  seems  to  us 
there  is  no  reason  for  saying  that  the  company  was  guilty  of  negli- 
gence, and  did  not  take  due  precautions  to  secure  the  wagon,  in 
view  of  the  established  fact  that  the  plaintiffs  undertook  to  attend 
to  these  matters  themselves.     The  company  received  the  property 
for  transportation,  loaded  and  secured  as  the  plaintiffs  saw  fit  to 
load  and  secure  it ;  and  why  should  negligence  be  imputed  to  it  for 
not  taking  precautions  to  guard  against  the  plaintiffs'  want  of  care? 
It  is  said  the  company  was  exceedingly  careless  and  negligent  in 
attempting  to  carry  this  covered  wagon  at  the  time  and  in  the  man- 
ner it  did,  without  making  any  effort  to  attach  the  same  more  firmly 
to  the  car.     But  the  obvious  answer  to  this  argument  is,  that  the 
plaintiffs  themselves  assumed  the  risk  and  responsibility  of  loading 
and  securing  the  wagon,  and  the  company  was  not  called  upon  to 
see  that  they  had  properly  performed  their  duty  in  that  regard. 
The  plaintiffs  had  ordered  that  the  wagon  should  be  sent  by  the 
night  train,  and  the  agents  of  the  company  had  agreed  to  take  it,  if 
loaded.     According  to  the  testimony  of  Carter,  one  of  the  plaintiffs, 
the  wind  blew  very  hard  between  eight  and  nine,  while  the  train 
on  which  the  wagon  was  to  go  did  not  leave  Janesville  until  9.15. 
There  was  ample  time  to  countermand  the  order  to  ship  the  wagon 
that  night,  or  to  see  that  it  was  so  secured  that  it  could  not  be 
blown  from  the  car  by  the  violence  of  the  wind.     It  seems  to  us 
that  whatever  negligence  there  was  in  securing  the  wagon  must  be 
imputed  to  the  plaintiffs.     The  case  is  not  distinguishable  in  prin- 
ciple from  Betts  v.  The  Farmers'  Loan  &  Trust  Company,  21  Wis. 
81,  and  the  decision  there   made   is  controlling  here.     There  the 
owner  of  cattle  shipped  by  railroad,  who  had  undertaken  to  put 
them  in  the  car,  knew  that  the  door  of  the  car  was  in  an  unsafe 
condition,  but  neglected  to  inform  the  station  agent,  who  was  igno- 
rant  of  the  fact;  and  it  was  held  that  he  could  not  recover  for 
injuries  received  by  the  cattle  in  escaping  from  the  car  in  conse- 
quence of  such  defect.     So,  under  the  circumstances  of  this  case,  it 
seems  to  us,  the  company  was  not  obliged  to  take  further  precau- 
tions to  fasten  or  secure  the  wagon  on  the  car.     The  plaintiffs  had 


124  CARRIERS   OF   GOODS. 

taken  upon  themselves  that  care  and  responsibility,  and  it  they 
failed  properly  to  secure  it  against  the  violence  of  the  wind,  and  it 
was  injured,  the  loss  is  attributable  to  their  fault. 

It  follows  from  these  views  that  the  judgment  of  the  Circuit  Court 
must  be  reversed,  and  the  case  remanded  with  directions  to  dismiss 
the  complaint. 


WHITE  V.   WINNISIMMET   CO. 
7  Cush.  (Mass.)  155.     1S51. 

This  was  an  action  on  the  case  against  the  proprietors  of  a  ferry 
for  an  injury  to  the  plaintiff's  property,  occasioned  by  his  liorse  and 
loaded  wagon  falling  overboard  from  one  of  the  defendants'  boats^ 
while  passing  from  Boston  to  Chelsea. 

Dewey,  J.  To  a  certain  extent,  persons  keeping  and  maintaining 
a  ferry  are  common  carriers,  and  subject  to  the  liabilities  attaching 
to  common  carriers.  It  would  be  so,  if  a  bale  of  goods  or  an  article 
of  merchandise  was  delivered  by  the  owner  to  the  agent  of  a  ferry 
company,  to  be  carried  from  one  place  to  another  for  hire.  Upon 
receiving  such  goods  for  transportation,  the  ferry  company  stipulate 
to  carry  them  safely,  and  suljject  themselves  to  strict  liability  for 
the  safe  carriage  and  delivery  of  such  goods ;  being  only  exempted 
for  losses  occasioned  by  those  acts,  which  are  denominated  "acts  of 
God,  or  of  a  public  enemy."  The  principle  above  stated  would 
embrace  the  case  of  a  horse  and  wagon  received  by  a  fi-rryman  to 
be  transjiorted  by  him  on  a  ferry-boat,  the  ferryman  accepting  tlie 
exclusive  custody  of  the  same  for  such  purpose,  and  the  owner 
having,  for  the  time  being,  surrendered  the  possession  to  the 
ferryman. 

But  the  traveller  uses  the  ferry-boat  as  ho  would  a  toll  bridge, 
personally  driving  liis  horse  ujjon  tlu*  boat,  selecting  his  position  on 
the  same,  and  himself  remaining  on  the  boat;  neither  putting  his 
horse  into  the  care  and  custody  of  the  ferryman,  nor  signifying  to 
him  or  his  servants  any  wish  or  purpose  to  do  so;  and  tlie  only 
possession  and  custody,  by  the  ferryman,  of  the  horse  and  vcliicle 
to  wliich  he  is  attached,  is  that  which  necessarily  results  from  the 
traveller's  driving  his  horse  and  wagon,  or  other  vehicle,  on  board 
the  boat,  and  paying  tlie  ordinary  t<dl  for  a  ])assage;  in  sucli  case, 
the  ferry  company  would  not  be  chargeable  with  tlie  full  liabilities 
of  common  carriers  of  merchandise.  The  liability  in  tliis  case  would 
be  one  of  a  different  character;  and  if  the  proprietors  of  the  f«'rry 
were  chargeable  for  loss  or  damage  to  the  property,  it  would  be 
upon  different  jirinciples.  In  reference  to  persons  thus  using  the 
fi-rry,  the  company  liave  rosjjonsible  duties  to  perform;  tlie  neglect 
of  which  may  charge  them  for  the  loss  of  goods  and  property  placed 


caeriek's  liability.  125 

on  board  their  boat,  when  the  loss  has  been  occasioned  by  their 
default.  It  is  the  duty  of  a  ferry  company  to  provide  a  good  and 
safe  boat,  suitable  for  the  business  in  which  they  are  engaged;  and 
they  are  required  to  have  all  suitable  and  requisite  accommodations 
for  the  entry  upon,  and  safe  transportation  while  on  board,  and  the 
departure  from  the  boat,  of  all  horses  and  vehicles  passing  over 
such  ferry.  They  are  required  to  be  provided  with  all  proper  and 
necessary  servants  and  agents  requisite  for  the  safe  and  proper  con- 
ducting of  the  business  of  the  ferry,  and  with  all  proper  and  suit- 
able guards  and  barriers  on  the  boat,  for  the  security  of  the  property 
thus  carried  on  the  boat,  and  to  prevent  damage  from  such  casualties 
as  it  would  naturally  be  exposed  to,  though  there  was  ordinary  care 
on  the  part  of  the  traveller.  For  neglect  of  duty  in  these  respects 
they  may  be  charged,  but  the  liability  is  different  from  that  of  com- 
mon carriers.  The  case  of  such  a  traveller,  though  not  entirely 
similar,  much  more  resembles  that  of  a  traveller  upon  a  toll  bridge 
or  turnpike  road;  who,  while  he  uses  the  easement  of  another,  yet 
retains  the  possession  and  custody  of  his  horse  and  wagon.  The 
party,  thus  driving  his  own  horse  upon  the  boat,  and  retaining  the 
custody  of  him,  is  bound,  like  the  traveller  on  the  toll  bridge  or 
the  turnpike  road,  to  use  ordinary  care  and  oversight  in  respect  to 
his  horse  while  on  the  boat,  and  if  he  does  not  use  such  ordinary 
care  and  oversight  in  respect  to  him,  and  for  want  thereof  the  horse 
leaps  overboard,  or  receives  on  the  boat  some  injury,  all  which 
might  and  would  have  been  avoided,  if  the  party  had  used  proper 
care  and  diligence,  such  party  must  himself  bear  the  loss  which  has 
thus  been  occasioned  by  his  own  neglect. 

In  deciding  upon  the  nature  and  extent  of  the  liability  of  ferry- 
men, and  how  far  they  are  to  be  charged  as  common  carriers,  regard 
is  to  be  had  to  the  nature  of  the  employment,  and  especially  to  the 
thing  to  be  transported.  This  principle  is  practically  applied  in 
the  well-known  distinction  relating  to  the  liability  of  the  proprietors 
of  stagecoaches  and  other  vehicles,  as  to  the  carriage  of  persons. 
No  person  thus  carried  in  a  public  vehicle  can  recover  damages  for 
an  injury  to  his  person,  if  his  own  want  of  ordinary  care  contributed 
to  the  injury.  Such  carriers  are  not  common  carriers,  with  all  the 
liabilities  as  such.  One  reason  for  the  distinction  is,  that  persons 
thus  carried  are  not  and  cannot  be  placed  under  the  same  custody 
and  control  as  bales  of  goods.  Being  intelligent  beings,  and  having 
the  power  of  locomotion,  and  having  the  opportunity  on  the  one 
hand  by  their  own  voluntary  acts,  of  exposing  themselves  to  greater 
hazard,  and  on  the  other  of  guarding  to  some  extent  against  perils, 
the  law  properly  requires  a  person  thus  carried  to  exercise  ordinary 
care  and  vigilance  to  avoid  exposure  to  danger;  and  if  this  is  not 
exercised,  and  an  injury  is  sustained,  the  carrier  is  not  liable 
therefor. 

The  same   principle    is   also   further   illustrated   in  the  various 


126  CARRIERS   OF   GOODS. 

decisions  of  the  courts,  iu  cases  of  actions  instituted  for  the  purpose 
of  charging  the  carriers  of  slaves  as  common  carriers  of  merchandise. 
It  was  successfully,  and  certainly  most  properly  contended,  as  to 
the  carriage  of  slaves,  that  in  those  States  where  slavery  is  allowed 
by  law,  and  where  slaves  are  to  some  purposes  treated  as  chattels, 
yet  as  they  are  human  beings,  and  cannot  and  ought  not  to  be  stored 
away  and  confined  like  bales  of  goods,  and  placed  under  the  abso- 
lute control  of  the  carrier,  the  principle  of  the  common  law  appli- 
cable to  common  carriers  of  merchandise  could  not  be  applied  to  the 
carriers  of  slaves.  This  was  so  held  iu  Boyce  r.  Anderson,  2  Pet. 
15U;  Clark  u.  McDonald,  4  McCord,  223. 

As  having  some  bearing  also  on  this  question,  we  may  allude  to 
the  modification  of  the  principle  of  general  liability  as  common 
carriers,  in  those  cases  where  the  owner  of  goods  accompanies  them 
in  their  transit,  retaining  a  certain  control  over  them,  as  in  Brind 
V.  Dale,  8  Car.  &  P.  207,  where  it  was  held,  that  if  the  owner  of 
goods  accompanies  them  to  take  care  of  them,  and  is  himself  guilty 
of  negligence,  he  is  not  entitled  to  recover.  This  case  also  afiirms, 
as  a  rule  of  law,  a  principle  often  found  elsewhere,  and  which  bears 
directly,  as  we  think,  upon  the  case  before  us,  '"that  a  party  cannot 
recover,  if  his  own  negligence  was  as  much  the  cause  of  the  loss  as 
that  of  the  defendant." 

Thus  we  perceive  that  a  modification  of  the  liability  attached  to 
common  carriers  occurs,  as  the  nature  of  the  thing  to  be  carried,  and 
the  extent  of  the  custody  and  control  over  it,  by  the  carrier,  varies. 
"We  think  that  the  propriety  of  such  a  modification  of  what  is  cer- 
tainly a  very  stringent  rule  of  liability,  in  reference  to  cases  where 
the  entire  custody  and  control  of  the  property  is  not  with  the 
carrier,  is  quite  obvious. 

The  case  of  a  traveller  conveyed  by  means  of  a  ferry-boat,  where 
the  traveller  enters  upon  the  boat  driving  his  horse  attached  to  a 
wagon,  or  other  vehicle,  selecting  his  own  place  upon  the  boat,  and 
continuing  to  retain  under  his  own  custody  his  horse  and  wagon, 
neither  committing  it  to  the  care  of  the  ferryman  or  his  servants, 
or  signifying  any  wish  or  purpose  so  to  do,  presents  anotlier  instance 
where  the  liability  of  the  carrier  must  be  considered  as  of  a  restricted 
character;  and,  as  in  the  case  of  a  carrier  of  persons,  duties  devolve 
upon  the  traveller,  and  he  is  bound  to  use  ordinary  care  and  dili- 
gence in  respect  to  his  horse  and  vehicle,  in  order  to  prevent,  as  far 
as  he  can,  by  such  care,  any  injury  occurring  from  friglit,  or  from 
other  cause  immediately  resulting  from  the  movements  of  the  horse. 
When  such  horse  or  other  animal  is  not  surrendered  into  the  custody 
of  the  ferryman,  the  driver  is  bound  t(j  do  all  that  can  l)e  effected  by 
reasonable  diligence  and  suj)ervision,  to  prevent  a  loss  of  his  ])T0])- 
erty  o<:ca8ione(l  by  his  horse  becoming  restless  or  affrighted.  If  the 
traveller  wholly  neglects  his  duty  in  this  respect,  leaving  his  horse 
without  any  oversight,  and  the  horse,  without  the  faiilt  of  the  ferry- 


carrier's  liability,  127 

man,  becomes  affrighted  and  throws  himself  and  the  vehicle  to 
which  he  is  attached  overboard,  when,  by  proper  care  and  attention 
of  the  driver,  this  casualty  would  in  all  reasonable  probability  have 
been  avoided,  the  loss  must  fall  upon  the  traveller. 

This  case  is  to  be  decided  by  the  application  of  these  principles  to 
the  agreed  facts  stated  by  the  parties. 

These,  briefly  stated,  are  as  follows:  The  defendants  keep  and 
maintain  a  ferry  between  Boston  and  Chelsea,  and  the  plaintiff, 
travelling  with  his  horse  and  wagon  loaded  with  merchandise,  drove 
the  horse  and  wagon  upon  the  ferry-boat  of  the  defendants,  paying 
the  usual  toll  for  his  horse  and  wagon.  The  plaintiff  did  not  occupy 
the  place  assigned  him  by  the  agent,  but  selected  his  own  position; 
no  further  objection  being  made  after  he  had  taken  it.  He  did  not 
commit  the  charge  of  the  horse  and  wagon  to  the  particular  custody 
of  the  servant  of  the  defendants,  or  express  any  wish  or  purpose  to 
do  so.  The  horse  had  not  been  accustomed  to  pass  over  upon  this 
ferry-boat.  The  plaintiff  remained  on  board  the  boat,  but  left  his 
horse  and  was  at  some  distance  from  him  with  no  one  to  have  an 
oversight  over  him,  or  to  restrain  him,  if  frightened.  In  this  state 
of  things,  the  horse  became  frightened  at  the  ringing  of  the  bell,  as 
the  boat  approached  the  shore,  and  sprang  forward,  struck  the  chain 
thrown  across  the  forward  end  of  the  boat,  with  such  force  as  to 
cause  the  hook  connected  with  it  to  give  way,  and  thereupon  the 
horse  and  wagon  went  overboard.  The  horse  was  drowned,  and  the 
merchandise  in  the  wagon  greatly  injured. 

The  facts,  as  stated,  also  show  that  the  iron  hook,  by  which  the 
chain  was  fastened,  was  defective  and  insufficient  in  strength  for^ 
the  purposes  it  was  designed  to  answer;  though  the  defendants  and 
their  agent  had  no  knowledge  of  that  fact.  This  defect  was  one; 
for  which  the  defendants  were  answerable,  and  which,  under  other 
circumstances,  might  have  charged  them  with  the  loss.  But,  unfor- 
tunately for  the  plaintiff,  the  facts  also  show  a  want  of  ordinary 
care  and  diligence  on  his  part,  in  the  oversight  and  care  of  his 
horse,  and  that,  by  want  of  such  care  and  oversight,  this  loss  was 
in  all  probability  occasioned. 

Every  person  is  bound  to  use  reasonable  care  to  prevent  damage 
to  his  property,  and  if  the  injury  is  attributable  to  himself  in  part, 
he  cannot  recover,  although  there  may  have  been  negligence  on  the 
part  of  the  other  party  also.  This  doctrine  is  fully  sustained  by 
the  case  of  Smith  v.  Smith,  2  Pick.  621,  and  by  2  Greenl.  on  Ev. 
§§  220,  473,  and  cases  there  cited.  The  court  are  of  opinion  that, 
upon  this  ground,  there  must  be 

Judgment  for  the  defendants. 


128  CAKKIEES   OF   GOODS. 

IIAirr   V.    CHICAGO,  ETC.  E.  CO. 

G9  Iowa,  4^5.     1SS6. 

Ox  the  eighteenth  day  of  April,  1883,  plaintiff  delivered  to 
defendant,  at  the  city  of  Des  Moines,  one  ear-load  of  ijroperty, 
which  the  latter  undertook  to  transport  to  the  town  of  INIiller,  in 
Dakota  Territory.  The  property  shipped  in  the  car  consisted  of 
six  horses,  two  wagons,  three  sets  of  harness,  a  quantity  of  grain,  a 
lot  of  household  and  kitchen  furniture,  and  personal  effects.  The 
contract  under  which  the  shipment  was  made  provided  that  the 
horses  should  be  loaded,  fed,  watered,  and  cared  for  by  the  shipper 
at  his  own  expense^  and  that  one  man  in  charge  of  them  ^vou]d 
be  passed  free  on  the  train  that  carried  the  car.  It  also  provided 
that  no  liability  would  be  assumed  by  the  defendant  on  the  horses 
for  more  than  SlOO  each,  unless  by  special  agreement  noted  on  the 
contract,  and  no  such  special  agreement  was  noted  on  the  contract. 
Plaintiff  placed  a  man  in  charge  of  the  horses,  and  he  was  permitted 
to,  and  did,  ride  in  the  car  with  them,  ^yhen  the  train  reached 
Bancroft,  in  this  State,  it  was  discovered  that  the  hay  which  was 
carried  in  the  car  to  be  fed  to  the  horses  on  the  trip  was  on  fire. 
The  car  was  broken  open,  and  the  man  in  charge  of  the  horses  was 
found  asleep.  The  train  men  and  others  present  attempted  to  ex- 
tinguish the  fire,  but  before  they  succeeded  in  putting  it  out  the 
horses  were  killed,  and  the  other  property  destroyed.  This  action 
was  lirought  to  recover  the  value  of  the  jjroperty.  There  was  a 
verdict  and  judgment  for  plaintiff,  and  defendant  ajipeals. 

Kkkd,  J.  1.  There  was  evidence  which  tended  to  prove  that  tlie 
fire  was  communicated  to  the  car  from  a  lantern  which  the  man  in 
charge  of  the  horses  had  taken  into  the  car.  This  lantern  was  fur- 
nishf'd  by  plaintiff,  and  was  taken  into  the  car  by  his  direction. 
Defendant  asked  tlie  (.'ircuit  Court  to  instruct  the  jury  that  if  the  fire 
whicli  destroyed  the  property  was  caused  by  a  lighted  lantern  in  the 
sole  use  and  control  of  plaintiff's  servant,  who  was  in  tlie  car  in 
charge  of  the  property,  plaintiff  could  not  recover.  The  court 
refused  to  give  this  instruction,  but  told  the  jury  tliat,  if  the  fire 
was  occasioned  by  the  fault  or  iifgligence  of  plaintiff's  servant,  who 
was  in  cliarge  of  the  property,  there  could  bo  no  recovery.  The  jury 
might  liave  found  from  the  evidence  that  the  fire  was  communicated 
to  the  hay  from  the  lantern,  but  that  plaintiff's  servant  was  not 
guilty  of  any  negligence  in  tlie  matter.  The  question  jjresented  by 
i  thi-i  .1  i'liment  of  error,  then,  is  wlicthcr  a  coninion  carrier  is 
\  T>  '•  for  the  injury  or  destruction  of  property  while  it  is  iiT 

the  <our.stj  of  transportation,  when  the  injury  is  caused  by  some  act 


carrier's  liability.  129 

of  the  owner,  but  which  is  unattended  with  any  negligence  on  the 
part  of  the  owner. 

The  carrier  is  held  to  be  an  insurer  of  the  safety  of  the  prop- 
erty while  he  has  it  in  possession  as  a  carrier.  His  undertaking 
for  the  care  and  safety  of  the  property  arises  by  the  implication 
of  law  out  of  the  contract  for  its  carriage.  The  rule  which  holds 
him  to  be  an  insurer  of  the  property  is  founded  upon  considera- 
tion of  public  policy.  The  reason  of  the  rule  is  that,  as  the  car-_ 
rier  ordinarily  has  the  absolute  possession  and  control  of  the 
property  while  it  is  in  the  course  of  shipment,  he  has  the  most 
tempting  opportunities  for  embezzlement  or  for  fraudulent  collusion 
with  others.  Therefore,  if  it  is  lost  or  destroyed  while  in  his  cus- 
tody, the  policy  of  the  law  imposes  the  loss  upon  him.  Coggs  v. 
Bernard,  2  Ld.  Kaym.  909;  Forward  v.  Pittard,  1  Durn.  &  E.  27 
[97] ;  Riley  v.  Home,  5  Bing.  217  [169] ;  Thomas  v.  Railway  Co., 
10  Mete.  472;  Roberts  v.  Turner,  12  Johns.  232  [32];  Moses  v. 
Railway  Co.,  24  N.  H.  71;  Rixford  v.  Smith,  52  id.  355.  His 
undertaking  for  the  safety  of  the  property,  however,  is  not  absolute. 
He  has  never  been  held  to  be  an  insurer  against  injuries  occasioned 
by  the  act  of  God,  or  the  public  enemy,  and  there  is  no  reason  why 
he  should  be;  and  it  is  equally  clear,  we  think,  that  there  is  no 
consideration  of  policy  which  demands  that  he  should  be  held  to 
account  to  the  owner  for  an  injury  which  is  occasioned  by  the 
owner's  own  act;  and  whether  the  act  of  the  owner  by  which  the 
injury  was  caused  amounted  to  negligence  is  immaterial  also.  If 
the  immediate  cause  of  the  loss  was  the  act  of  the  owner,  as  between 
the  parties,  absolute  justice  demands  that  the  loss  should  fall  upon 
him,  rather  than  upon  the  one  who  has  been  guilty  of  no  wrong; 
and  it  can  make  no  difference  that  the  act  cannot  be  said  to  be  either 
wrongful  or  negligent.  If,  then,  the  fire  which  occasioned  the  loss 
in  question  was  ignited  by  the  lantern  which  plaintiff's  servant,  by 
his  direction,  took  into  the  car,  and  which,  at  the  time,  was  in  the 
exclusive  control  and  care  of  the  servant,  defendant  is  not  liable, 
and  the  question  whether  the  servant  handled  it  carefully  or  other- 
wise is  not  material.  This  view  is  abundantly  sustained  by  the 
authorities.  See  Hutch.  Carr.,  §  216,  and  cases  cited  in  the  note; 
also  Lawson  Carr.  §§  19,  23. 

[The  other  paragraphs  of  the  opinion  relate  to  the  validity  of  a 
contract  purporting  to  limit  defendant's  liability.  The  Court  holds 
that  in  this  respect  there  was  no  error.] 

The  judgment  of  the  Circuit  Court  will  be  Reversed. 


130  CARRIERS   OF   GOODS. 

d.   Nature  of  goods. 

CLARKE  r.  ROCHESTER,  ETC.    R.    CO. 

14  N.  Y.  571.     1S5G. 

The  action  was  brought  in  the  Supreme  Court,  to  recover  damages 
for  the  loss  of  a  horse,  by  means  of  the  alleged  negligence  of  the  de- 
fendants as  common  carriers.  On  the  trial  before  W.  F.  Allen,  J., 
at  the  Oneida  Circuit,  in  October,  1^53,  it  appeared  that  the  plaintiffs 
etnbarked  four  horses  on  one  of  the  defendants'  cars^  at  Rochester, 
to  be  carried,  for  hire,  eastward  the  whole  length  of  the  defendants' 
road,  and  beyond,  and  that  when  the  train  arrived  at  Auburn  it  was 
found  that  one  of  them  was  dead.  This  horse  had  a  halter  around 
liis  head  and  nose,  which  was  tied  to  a  staple  driven  into  the  side  of 
the  car.  When  found,  he  was  lying  upon  his  side,  his  head  still 
held  up  by  the  halter,  and  blood  was  running  from  his  nostrils. 

On  the  part  of  the  defence  it  was  shown  that  one  of  the  plaintiffs 
was  present  when  the  horses  were  put  into  the  car,  and  assisted  in 
fastening  the  one  which  was  killed.  It  appeared  that  one  of  the 
plaintiffs  was  allowed,  in  the  bargain  for  the  carriage,  a  passage  for 
himself  on  the  train  which  carried  the  horses,  there  being  a  passen- 
ger car  attached  to  tliat  train,  but  that  he  in  fact  took  passage  in  a 
passenger  train  of  the  defendants,  which  started  at  a  later  hour,  and 
which  passed  the  cattle  train  before  it  reached  Auburn.  There  was 
evidence  pro  and  con,  as  to  whether  this  car  was  a  suitable  one  for 
the  trans])ortation  of  horses;  the  j)laintiffs'  witnesses  testify  that  it 
was  too  low,  and  those  of  the  defendants  that  it  was  one  of  the  kind 
commonly  used  for  carrying  horses. 

The  defendants'  counsel  moved  for  a  nonsuit,  on  the  ground  that 
the  defendants  were  not  responsilde  for  the  class  of  injuries  which 
result,  wholly  or  in  jiart,  from  tin'  conduct  of  animals  intrusted  to 
them  to  carry.  They  also  contended  that  it  was  the  duty  of  the 
plaintiff,  under  the  facts  proved,  to  have  gone  in  the  train  with  the 
horses  and  to  have  taken  care  of  them,  and  that  the  defendants'  duty 
was  limited  to  transporting  the  car  which  contained  them  in  safety. 
The  motion  was  denied,  and  the  defendants  cxcciited. 

TIm'  judge  left  it  to  the  jury  to  determine  wiictlHT,  by  tlie  con- 
tract, the  plaintiff  was  to  go  with  tlie  horses  and  take  care  of  them, 
stating  tliat  in  that  case  the  defendants  were  not  responsible.  Me 
charged  tliat,  if  such  was  not  tlio  contract,  tlie  defendants  were 
respfmHiVde,  unless  the  injury  was  received  by  a  danger  ineident  to 
this  mode  of  carriage  of  this  species  of  property,  and  which  the 
defendants  could  not,  by  the  exercise  of  diligence  and  care,  ])revent, 
or  by  inevitable  accident;  that,  in  the  absence  of  any  agreement  to 


carriek's  liability.  131 

the  contrary,  it  was  the  business  of  the  defendants  to  provide  a  per- 
son to  look  after  the  horses  on  their  passage,  if  their  safety  required 
such  oversight.  The  defendants'  counsel  excepted,  and  there  was 
a  verdict  for  the  plaintiffs.  The  judgment  having  been  affirmed  at 
a  general  term  in  the  hfth  district,  the  defendants  appealed. 

Denio,  C.  J.  The  fact  that  the  plaintiff  was  allowed  a  passage 
for  himself  on  the  train  in  which  his  horses  were  carried  did  not 
prove  conclusively,  if  at  all,  that  he  was  to  attend  to  their  safety 
during  the  journey.  It  may  very  well  be  that  he  desired  to  be 
present  at  the  time  and  place  of  delivery  in  order  to  take  care  of 
them  there,  and  that  the  privilege  of  taking  passage  in  the  same 
train  was  allowed  him  for  that  purpose.  The  charge  which  per- 
mitted the  jury  to  find  an  agreement  which  would  relieve  the 
defendants  from  the  obligation  to  keep  an  oversight  of  the  animals 
was  as  favorable  to  them  as  they  could  require. 

As  to  the  carrier's  liability  respecting  the  transportation  of  this 
sort  of  property,  several  theories  have  been  suggested  on  the  argu- 
ment and  in  our  consultations  upon  this  case. 

The  plaintiffs  contend  for  the  rule  that  the  carrier  is  bound  to 
transport  in  safety  and  deliver  at  all  events,  save  only  the  known 
cases  in  which  a  carrier  of  ordinary  chattels  is  excused,  while  the 
defendants  maintain  that  they  are  not  insurers  at  all  against  the 
class  of  accidents  which  arise  from  the  vitality  of  the  freight.  We 
are  of  opinion  that  neither  of  these  positions  is  well  taken.  A  bale 
of  goods  or  other  inanimate  chattel  may  be  so  stowed  as  that  abso- 
lute safety  may  be  attained,  except  in  transportation  by  water, 
where  the  carrier  usually  excepts  the  perils  of  the  navigation,  and 
except  in  cases  of  inevitable  accident.  The  rule,  established  from 
motives  of  policy,  which  charges  the  carrier  in  almost  all  cases,  is 
not  therefore  unreasonable  in  its  application  to  such  property.  But 
the  carrier  of  animals,  by  a  mode  of  conveyance  opposed  to  their 
habits  and  instincts,  has  no  such  means  of  securing  absolute  safety. 
They  may  die  of  fright,  or  by  refusing  to  eat,  or  they  may,  notwith- 
standing every  precaution,  destroy  themselves  in  attempting  to 
break  away  from  the  fastenings  by  which  they  are  secured  in  the 
vehicle  used  to  transport  them,  or  they  may  kill  each  other.  In 
_such  cases,  supposing  all  proper  care  and  foresight  to  have  been 
exercised  by  the  carrier,  it  would  be  unreasonable  in  a  high  degree 
to  charge  him  with  the  loss.  The  reasons  stated  by  Chief  Justice 
"Marshall,  in  pronouncing  the  judgment  of  the  Supreme  Court  of  the 
United  States,  in  Boyce  v.  Anderson,  2  Peters,  350,  have  consider- 
able application  to  this  case.  It  was  there  held  that  the  carrier  of 
slaves  was  not  an  insurer  of  their  safety,  but  was  liable  only  for 
ordinary  neglect ;  and  this  was  put  mainly  upon  the  ground  that  he 
could  not  have  the  same  absolute  control  over  them  that  he  has  over 
inanimate  matter.  Where,  however,  the  cause  of  tlie  damage  for 
which  recompense  is  sought  is  unconnected  with  the  conduct  or  pro- 


132  CAKKIERS   OF   GOODS. 

peusities  of  the  animal  umlertaken  to  be  carried,  the  ordinary  re- 
sponsibilities of  the  carrier  should  attach.  Palmer  r.  The  Grand 
Junction  Railway  Company,  4  Mees.  &  Wels.  749,  was  the  case  of 
an  action  against  the  railway  company  for  negligence  in  carrying 
horses,  by  which  one  was  killed  and  others  injured;  but  the  damage 
was  occasioned  by  the  carriages  running  off  the  track  of  the  road 
down  an  embankment,  and  the  case  did  not  turn  at  all  on  the  pecu- 
liarity of  the  freight,  but  mainly  on  the  question  whether  the 
defendants  had  limited  their  responsibility  by  a  notice.  The  jury 
found  that  notice  had  not  been  given  and  that  the  defendants  had 
been  guilty  of  gross  negligence.  Mr.  Baron  Parke,  in  giving  the 
opinion  of  the  court,  declared  that  the  common-law  duty  of  carriers 
was  east  upon  the  defendants.  The  precise  question  now  before  us 
was  not  discussed,  but  it  was  assumed  that  the  law  of  carriers 
applied  to  the  case.  X^^ere  is.  no  reason  why  it  should  not,  in  all 
cases  of  accident  unconnected  with  the  conduct  of  the  animals.  But 
the  rule  which  would  exempt  the  carrier  altogether  from  accidents 
arising  out  of  the  peculiar  character  of  the  freight,  irrespective  of 
the  question  of  negligence,  would  be  equally  unreasonable.  It 
would  relieve  the  carrier  altogether  from  those  necessary  precau- 
tions which  any  person  becoming  the  bailee,  for  hire,  of  animals  is 
bound  to  exercise,  and  the  owner,  where  he  did  not  himself  assume 
the  duty  of  seeing  to  them,  would  be  wholly  at  the  mercy  of  the 
carrier.  The  nature  of  the  case  does  not  call  for  any  such  relaxa- 
tion of  the  rule,  and,  considering  the  law  of  carriers  to  be  estab- 
lished upon  considerations  of  sound  policy,  we  would  not  depart 
from  it,  except  where  the  reason  upon  which  it  is  based  wholly  fails, 
and  then  no  further  than  the  cause  for  the  exception  requires. 

We  cannot,  therefore,  assent  to  the  position  of  the  counsel  for 
either  of  the  parties  in  this  case.  The  learned  judge  who  tried  tliis 
case  gave  to  the  jury  the  true  principle  of  liability  in  sucli  cases. 
Laying  out  of  view  the  idea  of  inevitable  accident,  which  it  was  not 
pretended  had  occurred,  he  instructed  them  that  the  defendants  were 
resjionsible,  unless  the  damage  was  caused  by  an  occurrence  incident 
to  tlie  carriage  of  animals  m  a  railroad  car,  and  which  the;  defendants 
could  not,  by  the  exercise  of  diligence  and  care,  have  preveuteiL 
This  accords. with  our  understanding  of  the  la^y. 

.There  was  sufficient  evidence  of  negligence  to  be  submitted  to  the 
jury.  Besides  wliat  was  said  by  the  witness  as  to  the  size  of  the 
car,  it^was  quite  probable  tliat  if  a  proper  watch  had  been  kept, 
the  horse  would  liave  been  saved  from  strangulation.  It  was  for 
tlie  jury  to  say  whether  prudence  did  not  require  that  a  servant  of 
the  defendants  should  have  been  stationed  in  or  about  the  horse-car, 
80  as  to  (observe  tl»e  conduct  and  condition  of  tlie  animals  constantly 
or  at  short  intervals. 

We  think  no  error  was  committed  on  tlio  trial  to  tlie  prejudice  of 
the  defendants,  and  tliat  tlie  judgment  should  be  affirmed. 


carrier's  liability.  133 

EVANS   V.    FITCHBURG  R.    CO. 
Ill  Mass.  142.     1872. 

Tort  against  common  carriers  to  recover  for  injuries  to  the 
plaintiff's  horse. 

Ames,  J.  According  to  the  established  rule  as  to  the  liability  of 
a  common  carrier,  he  is  understood  to  guarantee  that  (with  the  well- 
knoAvn  exception  of  the  act  of  God  and  of  public  enemies)  the  goods 
intrusted  to  him  shall  seasonably  reach  their  destinatiou,  and  that 
they  shall  receive  no  injury  from  the  manner  in  which  their  trans- 
portation is  accomplished.  But  he  is  not,  necessarily  and  under  all 
circumstances,  responsible  for  the  condition  in  which  they  may  be 
found  upon  their  arrival.  The  ordinary  and  natural  decay  of  fruit, 
vegetables,  and  other  perishable  articles ;  the  fermentation,  evapora- 
tion, or  unavoidable  leakage  of  liquids;  the  spontaneous  combustion 
of  some  kinds  of  goods, — are  matters  to  which  the  implied  obligation 
of  the  carrier,  as  an  insurer,  does  not  extend.  Story  on  Bailments, 
§§  492  a,  576.  He^  is  liable  for  all  accidents^and  mismanagement 
incident  to  the  transportation  and  to  the  means  and  ajopliances  by 
which  it  is  effected;  but  not  for  injuries  ^^roduced  by,  or  resulting 
from,  the  inherent  defects  or  essential  qualities  of  the  articles  which 
he  undertakes  to  transport^  The  extent  of  his  duty  in  this  respect 
is  to  take  all  reasonable  care  and  use  all  proper  precautions  to  pre- 
vent such  injuries,  or  to  diminish  their  effect,  as  far  as  he  can ;  but 
his  liability,  in  such  cases^  is  by  no  means  that  of  an  insurer^ 

Upon  receiving  these  horses  for  transportation,  without  any  special 
contract  limiting  their  liability,  the  defendants  incurred  the  general 
obligation  of  common  carriers.  They  thereby  became  responsible 
for  the  safe  treatment  of  the  animals,  from  the  moment  they  received 
them  until  the  carriages  in  which  they  were  conveyed  were  unloaded. 
Moffat  V.  Great  Western  Railway  Co.,  15  Law  T.  x.  s.  630.  They 
would  be  unconditionally  liable  for  all  injuries  occasioned  by  the 
improper  construction  or  unsafe  condition  of  the  carriage  in  which 
the  horses  were  conveyed,  or  by  its  improper  position  in  the  train, 
or  by  the  want  of  reasonable  equipment,  or  by  any  mismanagement, 
or  want  of  due  care,  or  by  any  other  accident  (not  within  the  well- 
known  exception)  affecting  either  the  train  generally  or  that  partic- 
ular carriage.  But  the  transportation  of  horses  and  other  domestic 
animals  is  not  subject  to  precisely  the  same  rules  as  that  of  pack- 
ages and  inanimate  chattels.  Living  animals  have  excitabilities 
and  volitions  of  their  own  which  greatly  increase  the  risks  and 
difficulties  of  management.  They  are  carried  in  a  mode  entirely 
opposed  to  their  instincts  and  habits;  they  maj"  be  made  uncon- 
trollable   by   fright,   or,    notwithstanding    every   precaution,    may 


134  CARRIERS   OF   GOODS. 

destroy  themselves  in  attempting  to  break  loose,  or  may  kill  each 
other.  If  the  injury  in  this  case  was  prorlucetl  by  the  fright,  res- 
tiveuess,  or  viciousness  of  the  animals,  and  if  the  defendants  exer- 
cised all  proper  care  and  foresight  to  prevent  it,  it  would  be 
unreasonable  to  hold  them  responsible  for  the  loss.  Clark  v. 
Rochester  &  Syracuse  Railroad  Co.,  4  Kern.  570.  Thus  it  has  been 
held  that  if  horses  or  other  animals  are  transported  by  water,  and 
in  consequence  of  a  storm  they  break  down  the  jiartition  betwevn 
them,  and  by  kicking  each  other  some  of  them  are  killed,  the  carrier 
will  not  be  held  responsible.  Laurence  r.  Aberdein,  5  B.  tS:  Aid. 
107.  Story  on  Bailments,  §  576.  Angell  on  Carriers,  214  a.  The 
carrier  of  cattle  is  not  responsilde  for  injuries  resulting  from  their 
viciousness  of  disposition,  and  the  question  what  was  the  cause  of 
the  injury  is  one  of  fact  for  the  jury.  Hall  v.  Renfro,  3  !Met.  (Ky.) 
51  [25].  And  in  a  Xew  York  case,  Conger  v.  Hudson  River  Rail- 
road Co.,  6  Duer,  375,  'Slv.  Justice  Woodruff  says,  in  behalf  of  the 
court:  "We  are  not  able  to  perceive  any  reason  upon  which  tlie 
shrinkage  of  the  plaintiff's  cattle,  their  disposition  to  become  res- 
tive, and  their  trampling  upon  each  other  when  some  of  tliem  lie 
down  from  fatigue,  is  not  to  be  deemed  an  injury  arising  from  the 
nature  and  inherent  character  of  the  property  carried,  as  truly  as  if 
the  property  had  been  of  any  description  of  perishable  goods." 

It  appears  to  uS,  therefore,  that  the  first  instruction  which  the 
defendants  requested  the  court  to  give  should  have  been  given.  If 
the  jury  found  that  the  defendants  provided  a  suitable  car,  and  took 
all  proper  and  reasonable  precaution  to  prevent  the  occurrence  of 
such  an  accident,  and  that  the  damage  was  caused  by  tlie  kicking  of 
one  horse  by  anotlier,  tlie  defendant  was  entitled  to  a  verdict.  That 
is  to  say,  they  might  be  held  to  great  vigilance,  foresiglit,  and  care, 
but  they  were  not  absolutely  liable  as  insurers  against  injuries  of 
that  kind.  As  there  was  evidence  also  tending  to  show  that  the 
halter  was  attached  by  tlie  jdaintiff  to  tlie  jaw  of  one  of  the  horses 
in  a  manner  which  might  cause  or  increase  rcstiveness  and  bad  tem- 
]>f'T,  and  also  evidence  that  their  shoes  were  not  taken  off,  the 
defendants  were  entitled  to  tlie  instruction  that  if  the  injuries  were 
caused  by  the  fault  or  neglect  of  the  plaintiff  in  these  particulars, 
he  could  not  recover.  This  court  has  recently  decided  that  for 
unavoidable  injuries  done  by  cattle  to  themselves  or  each  other,  in 
their  passage,  the  common  carrier  is  not  liable.  Smith  r.  New 
Haven  &  Xorthami)ton  Railroad  Co.,  12  Allen,  531.  This  is  another 
mode  of  saying  that  a  railroad  corporation,  in  undertaking  the  trans- 
portation of  cattle,  does  not  insure  their  safety  against  injuries  occa- 
sioned by  their  viciousness  and  unruly  conduct.  Kendall  r.  London 
&  Southwestern  Railway  Co.,  L.  R.  7  Kx.  373.  The  jury  should 
there  for*'  have  beon  instructed  that  if  the  injury  hapjiened  in  that 
way,  and  if  the  defendants  exercised  jiroper  eare  and  ftircsight  in 
placing  and  securing  the  horses  while  under  their  charge,  they  are 


CAERIER'S   LIABILITY.  135 

not  to  be  held  liable  in  this  action.  Upon  this  point  the  burden  of 
proof  may  be  upon  the  defendants,  but  they  should  have  been  per- 
mitted to  go  to  the  jury  upon  the  question  whether  there  had  been 
reasonable  care  on  their  part. 

Exceptions  sustained. 


KINNICK  BROS.   v.  CHICAGO,    etc.  R.    CO. 
69  Iowa,  605.     1886. 

PLAiNTiFF_deliveredja^ar-loa        hogs_to  defendant^ at  Drakeville, 

in  this  State,  for  transportation  to  the  Union  stock-yards  at  Chicago. 
A  passen^r  train,  on_defendant's  road  was  thrown  from  the  track 
near  Ottawa,  Illinois,_  and  the  obstruction  caus£.(L_by  the  accident 
delayed  the  train  on  which  the  plaintiff's  hogs  were  shipped  for 
about  twelve  hours^  When  the  train  arrived  at  Chicago,  eighteen 
of  the  hogs  were  dead,  and  others  were  so  injured  as  to  depreciate, 
their  value  in  market.  Plaintiff  brought  this  action  to  recover  the 
damages  occasioned  by  the  injury,  alleging  that  defendant  had  vio- 
lated its  undertaking  as  a  common  carrier  to  deliver  the  hogs  in 
Chicago  within  a  reasonable  time  and  in  good  order;  also,  that  the 
injury  was  caused  by  defendant's  negligence.  The  defendant  in  its 
answer  denied  that  the  delay  in  delivering  the  hogs  in  Chicago  was 
caused  by  any  negligence  on  its  part,  and  averred  that  the  train  was 
delayed  by  unavoidable  accident;  and  averred  that  the  hogs  were 
loaded  on  the  car  by  plaintiffs;  that  they  had  full  charge  of  the 
work  of  loading  them;  that,  without  defendant's  knowledge  or  con- 
sent, they  overloaded  the  car;  and  that  the  injury  to  the  hogs  while 
being  transported  was  occasioned  by  such  overloading.  The  verdict 
and  judgment  were  for  plaintiffs,  a  motion  for  a  new  trial  being 
denied.     Defendant  appealed. 

Reed,  J.  I.  Defendant  offered  evidence  on  the  trial  to  prove 
that  the  wreck  which  obstructed  the  track,  and  delayed  the  train  on 
which  the  hogs  were  being  transported,  occurred  without  fault  on  its 
part,  and  that  it  caused  the  track  to  be  cleared  and  sent  the  train 
forward  as  soon  after  the  accident  as  practicable ;  but  the  evidence 
was  excluded  by  the  court  on  the  plaintiff's  objection.  Defendant 
sought  to  prove  these  facts  in  excuse  of  the  delay  in  delivering  the 
hogs  at  Chicago.  There  was  no  express  undertaking  by  the  defend- 
ant to  transport  the  property  to  its  destination  within  any  specified 
time.  The  law,  however,  implies  an  undertaking  by  it  to  deliver  it 
there  within  a  reasonable  time.  But,  with  reference  to  the  time  to  f 
be  occupied  in  transporting  the  property,  the  carrier  is  not  held  to  \ 
the  extraordinary  liability  to  which  he  is  held  for  its  safety  while 
it  is  in  his  custody ,  and  he  may  excuse  delay  in  its  delivery  by  proof  | 


136  CARRIERS   OF   GOODS. 

of  misfortune  or  accitlent,  although  uot  iuevitable  or  produced  by 
,  act  of  God  (Hutch.  Carr.,  §  330;  Parsons  r.  Hardy,  14  Wend.  215); 
'  so  that,  if  plaintiffs  had  sought  to  recover  merely  on  the  ground  that 
there  was  delay  in  the  transportation  of  the  property,  there  would 
!  be  no  doubt,  perhaps,  but  defendant  would  have  been  entitled  to 
1  show  the  facts  which  the  excluded  evidence  would  have  tended  to 
'  prove  as  an  excuse  for  the  delay.  But  that  is  not  the  substance  of 
I  their  complaint. 

It  is  true,  they  allege  that  there  was  delay,  but  they  do  not  claim 
that  they  were  damaged  by  the  mere  fact  of  the  delay,  and  the 
ground  upon  which  they  seek  to  recover  is  that  the  property  was  in 
bad  condition  when  it  reached  its  destination.  It  was  not  disputed 
that  the  property  was  in  bad  condition  when  it  arrived  in  Chicago. 
The  burden  was  therefore  on  defendant  to  jestablish  facts  which 
would  relieve  it  from  liability  because  of  its  bad  condition._  It  was 
an  insurer  of  the  safety  of  the  property  while  in  its  charge  for  trans- 
portation, and  it  was  not  released  from  that  extraordinary  liability 
for  its  care  by  the  accident  which  caused  the  delay,  even  though  it 
offered  an  excuse  for  the  delay.  It  was  bound,  notwitlistanding  the 
accident,  to  use  the  highest  degree  of  care  during  tlie  delay  for  the 
safety  of  the  property.  If  the  removal  of  the  hogs  from  the  car 
during  the  time  was  necessary  for  their  protection  from  injury,  and 
it  was  possible  to  remove  them,  defendant  was  bound  to  do  so ;  and 
it  was  bound  to  give  them  whatever  personal  attention  was  necessary 
for  their  protection  from  injury  during  the  time.  But  it  did  not 
offer  to  show  that  it  had  unloaded  them  from  the  cars,  or  that  it  was 
impossible  to  unload  them,  or  that  it  was  not  necessary  for  their 
safety  to  unload  them,  or  that  the  injury  did  not  occur  in  con- 
sequence of  its  failure  to  give  them  such  personal  attention  as  was 
essential  to  their  safety.  But  the  extent  of  its  offer  was  to  show 
facts  which  tended  merely  to  excuse  the  delay  in  their  transporta- 
tion. We  are  very  clear  that  those  facts  do  not  afford  an  excuse  for 
the  bad  condition  of  the  property  at  the  time  of  its  delivery.  The 
evidence  was  immaterial,  and  was  rightly  excluded. 

II.  It  was  shown  on  the  trial  that  it  is  the  disposition  of  hogs, 
when  being  transported  on  cars,  to  struggle  to  get  near  to  the  doors 
wlion  the  train  is  standing,  if  tlie  weather  is  hot,  and  to  crowd  away 
from  them  if  it  is  cold,  and  that  in  doing  this  they  are  apt  to 
"pile  up,"  and  that  when  this  occurs  those  beneath  arc  liable  to  be 
smothered,  unless  they  receive  immediate  attention.  The  court 
instructed  the  jury,  in  effect,  that,  when  the  defendant  contracted 
to  carry  the  hogs  to  their  destination,  the  law  impo.scd  u])on  it  the 
obligation  to  carry  tliem  in  a  pr(»i)('r  maniuT,  and  deliver  them  in 
gof)d  condition,  considering  the  ordinary  jjerils  of  tlu^  road,  and 
that,  if  it  failed  to  deliver  them  in  such  condition,  it  was  respon- 
sible in  damages  for  such  failure.  The  instruction  holds  that 
defendant  was  an  insurer  of  the  safety  of  the  projierty,  and  lliat  its 


carrier's  liability.  137 

liability  extended  to  all  injuries  to  the  property  during  its  trans- 
portation, except  such  as  may  have  resulted  from  the  ordinary  perils 
of  the  road,  such  as  the  usual  shrinkage  in  weight,  and  such  loss 
from  death  as  would  ordinarily  occur  on  the  trip  with  good  care  and 
management.  Counsel  for  appellant  contend  that,  as  the  cause 
of  the  injury  in  question  was  connected  with  the  natural  propen- 
sities and  characteristics  of  the  property,  it  was  one  against  which 
the  carrier  is  held  not  to  be  an  insurer,  and  that  the  instruction  is 
erroneous  on  that  ground. 

It  was  held  in  effect,  by  this  court  in  McCoy  v.  Keokuk  &  D.  M. 
K'y  Co.,  44  Iowa,  424,  that,  when  the  cause  of  damage  for  which 
recompense  is  sought,  is  connected  with  the  character  or  propensities 
of  the  animals  undertaken  to  be  carried,  the  ordinary  responsibility 
of  the  carrier  does  not  attach.  The  reasons  for  the  exception  to  the 
general  rule  as  to  the  liability  of  the  carrier,  which  arises  when  he 
undertakes  to  transport  live-stock,  are  very  apparent.  There  are 
dangers  incident  to  the  transportation  of  that  character  of  property 
which  are  created  entirely  by  the  disposition  and  propensities  of  the 
animals,  and  against  which  it  is  often  impossible  for  the  carrier  to 
make  adequate  provision.  But  the  rule  of  the  common  law  is  modi- 
fied only  so  far  as  is  rendered  necessary  by  the  character  of  the 
property  in  this  respect.  In  every  other  respect  the  carrier  is  held 
to  be  an  insurer  of  the  property. 

In  our  opinion,  the  present  case  is  not  within  the  exception  to  the 
rule.  The  injury  was  caused  by  the  "  piling  up  "  of  the  hogs  while 
struggling  to  get  near  to  or  away  from  the  doors  of  car.  The  pro- 
pensity, however,  was  to  do  this  only  when  the  train  was  standing. 
Owing  to  the  obstruction  of  the  track,  it  was  kept  standing  at  a 
station  for  twelve  hours,  and,  without  doubt,  it  was  during  that 
time  that  the  injury  occurred.  But  the  danger  was  not  one  against 
which  provision  could  not  be  made.  The  injury  might  have  been 
prevented  either  by  unloading  the  hogs  or  giving  them  personal 
attention  while  in  the  car.  There  is  no  claim  that  this  could  not 
have  been  done,  and  we  think  defendant  was  bound  to  do  it.  As 
there  was  nothing  shown  which  tended  to  take  the  case  out  of  the 
general  rule,  the  court  was  right  in  instructing  that  defendant  was 
bound  by  that  rule. 

III.  Plaintiffs  loaded  the  hogs  on  to  the  car  without  assistance  or 
direction  from  defendant's  agents  or  employees.  Defendant  claimed 
that  the  car  was  overloaded,  and  that  the  injury  was  caused  by  such 
overloading.  The  court  instructed  the  jury  that,  if  defendant  had 
knowledge  of  the  number  of  hogs  in  the  car,  and  of  the  condition  of 
the  car  as  to  the  loading  when  it  received  it,  or  if  it  might  have 
known  these  facts,  it  could  not  escape  liability  for  the  damage  on 
the  ground  that  the  car  was  overloaded.  Exception  is  taken  to  this 
instruction.  But  we  think  it  correct.  It  is  not  claimed  that  there 
was  any  deceit  or  misrepresentation  by  plaintiff  as  to  the  condition 


138  CARRIERS   OF   GOODS. 

of  the  car  or  to  its  loading.  Defendant's  agent,  who  made  the  con- 
tract for  it,  went  to  the  car  after  the  loading  was  done,  and  closed 
and  sealed  it.  There  was  nothing  to  prevent  him  from  seeing  the 
manner  in  which  it  was  loaded.  As  defendant  received  the  propert}- 
under  these  circumstances,  and  undertook  to  transport  it  to  its  des- 
tination, it  should  be  held  to  have  assumed  all  the  liabilities  of  a 
common  carrier  with  reference  to  it. 

The  judgment  of  the  District  Court  will  be 

Affirmed. 


e.    Carrier^ s  Fault  or  XegUfjence. 

SCOVILL   y.    GKIFFrni. 
1-2  X.  Y.  509.     1855. 

AcTioK  commenced  in  the  Supreme  Court  in  1849  against  the 
defendant  as  a  common  carrier  to  recover  for  his  omission  to  trans- 
port to  and  deliver  at  Albany  merchandise,  shipped  by  the  plaintiffs 
on  board  the  defendant's  boat  at  New  York,  consigned  to  Albany, 
whereby,  as  the  plaintiffs  alleged,  the  property,  being  of  the  value 
of  three  hundred  and  twenty-four  dollars,  became  lost  to  them,  and 
they  also  lost  the  benefit  of  the  sale  of  the  same  to  one  Greenman, 
to  their  damage  of  one  hundred  dollars;  the  plaintiffs  demanded 
judgment  for  four  hundred  and  twenty-four  dollars,  being  the  amount 
of  the  value  of  tlie  merchandise  and  tlie  damages  alleged  to  have 
been  sustained  by  not  selling  it. 

The  cause  was  tried  in  the  city  of  New  York,  before  Mr.  Justice 
Edwards  and  a  jury.  It  appeared  that  on  and  prior  to  the  24th  of 
May,  l.S4'.>,  the  defendant  was  the  owner  of  a  lino  of  barges,  known 
as  "Griffith's  New  York  and  Troy  Line,"  em])loyed  in  transporting 
goods  and  merchandise  on  the  Hudson  River;  that  the  plaintiffs  were 
merchants  in  the  city  of  New  York;  that  i)rior  to  the  delivery  of 
the  projierty  in  question  on  board  the  defendant's  boat,  the  i)l;untiffs 
had  contracted  to  sell  it  to  one  (Jreenman,  they  to  deliver  it  at  tlie 
store  of  Ainsworth  »&  Nortlirop,  in  Albany,  when  it  was  to  become 
his.  A  witness  on  the  part  of  the  plaintiffs  testified  that  on  the 
2'M  of  May,  the  defendant  agreed  with  the  ])laintitTs  to  transj)ort  all 
the  merchandise  tliey  miglit  desire  to  send  to  Troy  or  Albany  at  six 
cents  a  package;  that  the  defendant,  on  tliis  occasion,  informed  the 
plaintifTs  that  liis  boats  did  not  go  to  Albany,  but  tliat  when  they 
wished  the  goods  to  go  to  Albany,  to  send  tlie  carman  witli  them  to 
his  office,  and  he  would  give?  directions  as  to  the  boat  tliey  should  be 
delivered  upon.  \Vhite,  a  carman,  sworn  on  l)ehalf  f)f  the  j)]aiii- 
tiffs,  testified  that  on  the  L'Jtli  of  May  lie,  at  the  ]ilainlilT's  re(|uest, 


carrier's  liability.  139 

delivered  nine  packages  of  medicine  on  board  the  barge  "McCoun," 
then  lying  at  one  of  the  piers  in  New  York,  she  being  one  of  the 
boats  belonging  to  the  defendant's  line,  to  be  transported  and 
delivered  at  Albany;  that  when  he  received  the  packages  he  took 
with  him  the  plaintiff's  receipt  book  with  the  receipt  hereinafter 
set  out  written  therein,  except  the  name  of  the  boat  and  the  signa- 
ture thereto;  that  he  called  with  the  goods  at  the  office  of  the 
defendant's  line  to  get  directions  as  to  the  boat  upon  which  they 
should  be  delivered;  that  he  showed  the  receipt  written  in  the  book 
to  a  person  in  the  office,  who  directed  him  to  deliver  the  packages 
on  board  the  "McCoun;"  that  on  going  to  the  boat  the  captain, 
Wilson,  when  he  saw  the  goods  were  marked  for  Albany,  refused 
to  receive  them,  saying  the  boat  did  not  go  there ;  but  upon  being 
informed  by  the  witness  that  there  was  an  understanding  with  the 
defendant  that  they  should  be  taken  on  the  boat,  he  received  them, 
inserted  the  name  of  the  boat  in  the  receipt,  and  signed  it.  The 
receipt  was  as  follows :  — 

"New  York,  May  24,  1849. 
"Received  from  A.  L.  Scovill  &  Co.,  in  good  order,  on  board  the 
Griffith's  line,  bound  for  Albany,  marked  S.,  S.  H.  Greenman. 
"Care  of  Ainsworth  &  Northrop,  )  McCoun, 
"No.  15  State  street,  Albany,   j  9  boxes  Mdse. 

"Wilson." 

This  witness  further  testified:  That  when  the  captain  saw  the 
packages  marked  as  stated  in  the  above  receipt,  he  said  they  should 
be  marked  Troy  instead  of  Albany,  and  that  he,  the  witness,  replied 
that  they  were  correctly  marked,  and  showed  him  the  above  receipt 
prepared  for  signature,  and  also  informed  him  that  he  was  directed 
at  the  office  to  deliver  them  on  that  boat;  that  the  captain  still 
declining  to  receive  and  receipt  them,  he  commenced  reloading  them 
on  his  cart,  when  the  captain  told  him  that  his  boat  did  not  go  to 
Albany,  but  to  lea,ve  the  goods  and  he  would  take  them ;  that  there- 
upon they  were  delivered  on  board  and  the  receipt  signed.  The 
plaintiffs  further  proved,  that  the  usual  time  for  transporting  mer- 
chandise from  New  York  to  Albany  was  twenty-four  hours;  that 
Greenman,  who  resided  in  the  western  part  of  the  State,  advised 
Ainsworth  &  Northrop  that  tlie  property  would  be  delivered  there 
for  him  about  the  26th  of  May,  and  that  he  called  and  sent  there  for 
it  several  times  soon  after  that  date,  and  that,  it  not  arriving,  he 
gave  them  no  further  directions  in  reference  to  it.  The  plaintiifs 
further  proved  that  the  packages  were  taken  by  the  boat  to  Troy, 
where  they  remained  in  the  defendant's  warehouse  until  the  7th  of 
July,  1849,  when  they  were  delivered  by  the  defendant  to  a  carrier 
to  be  taken  to  Albany  and  delivered  to  Ainsworth  &  Northrop;  and 
that  the  carrier  on  that  day  took  them  to  the  latter  firm  at  Albany 
and  offered  to  deliver  them,  subject  to  the  payment  of  five  shillings, 


140  CARRIERS   OF   GOODS. 

his  charge  for  bringing  them  from  Troy;  but  the  latter  firm  refused 
to  receive  the  goods  because,  as  they  stated,  the  time  for  delivery 
had  passed  and  they  had  orders  not  to  receive  the  i^roperty ;  and 
that  thereupon  the  carrier  stored  the  packages  in  Albany,  where  they 
remained  at  the  time  of  the  trial.  The  plaintiff  proved  the  value  of 
the  property  to  be  S324. 

The  court,  among  other  things,  charged  the  jury  that  if,  from  the 
testimony,  they  should  find  tliat  there  -was  an  agreement  by  the 
defendant,  or  those  whose  acts  would  bind  him,  to  carry  the  prop- 
erty in  question  to  Albany,  then  a  question  arose  as  to  the  rule  of 
damages.  That  mere  delay,  although  unreasonable,  did  not  make 
the  defendant  chargeable  for  the  value  of  the  goods.  That  in  this 
case  there  was  no  claim  that  the  property  was  injured  or  deteriorated 
by  the  delay.  That  if  they  had  been  materially  injured  or  deteri- 
orated, this  might  authorize  an  abandonment  of  them  by  the  owner, 
and  give  the  plaintiffs  a  right  to  charge  the  defendant  for  their 
value;  but  as  it  was,  the  rule  would  be  the  difference  between  the 
highest  market  price  of  the  goods,  when  or  after  they  should  have 
been  delivered,  and  when  they  were  actually  tendered,  and  the 
expense  the  plaintiffs  were  put  to  by  the  delay.  To  this  portion  of 
the  charge  there  was  no  exception. 

The  plaintiffs'  counsel  requested  the  judge  to  charge,  that  if  there 
was  an  agreement  to  carry  the  goods  to  Albany,  that  unreasonable 
delay  in  the  delivery  of  goods  made  the  defendant  liable  to  account 
for  their  full  value;  that  the  law  imposed  this  liability  upon  com- 
mon carriers,  as  a  penalty  for  delay,  although  it  might  not  be  so 
with  other  bailees.  The  court  refused  to  so  charge,  and  the  counsel 
for  the  plaintiffs  excepted.  The  jury  rendered  a  verdict  in  favor 
of  the  plaintiff  for  §10;  and  judgment  was  rendered  in  favor  of  the 
defendants  for  the  amount  of  their  costs,  less  the  §10.  This  judg- 
ment was  affirmed  by  the  Supreme  Court  at  a  general  term  in  the  1st 
district.     The  ]>laintiffs  appealed  to  this  court. 

Hand,  J.  The  jury  have  found  the  contract  of  bailment  in  this 
case,  and  assessed  the  damages  for  its  violation  by  the  defendant. 
As  to  tlie  time  in  which  his  contract  is  to  be  performed,  a  common 
carrier  is  bound  to  uso  all  reasonal>le  diligence.  That  was  not  done 
in  this  case;  and  on  tho  (piostion  of  damagos,  tlie  jury  probably  took 
a  view  of  the  circumstances  very  favf)rable  to  tlie  defendant.  But 
their  verdict  cannot  be  disturbed  solely  upon  tliat  ground.  Nor  did 
tlie  judge  err  in  the  admission  of  evidence  as  to  the  circumstances 
under  whicli  the  receipt  was  given.  The  i)roposition  was  not  to 
vary  or  explain  tlie  terms  of  the  receii)t;  .and  the  defendant  had  a 
riglit  to  show,  if  such  was  the  fact,  that  it  was  obtaijied  from  his 
agent  or  servant  under  such  circumstances  as  did  not  bind  him. 

There  wa.s  no  exce])tion  to  tlie  charge  a.s  given;  and  the  only  (pies- 
tion  really  ari.sing  on  this  l)ill  of  exceptions  is,  wliether  the  judge 
should  have  told  the  jury  that,  if  there  was  a  contract  to  carry  the 


carrier's  liability.  141 

goods  to  Albany,  the  plaintiffs  were  entitled,  as  a  matter  of  law,  to 
recover  the  full  value  of  the  goods  on  account  of  the  delay.  The 
plaintiffs  asked  for  an  unqualified  charge  on  this  point,  without 
reference  to  the  motives  of  the  defendant,  or  any  circumstances  that 
might  be  supposed  to  explain  the  transaction.  I  think  the  judge 
could  not  have  charged  as  requested.  The  plaintiffs  state  in  their 
complaint  that  the  property  was  wholly  lost  to  them,  and  that  they 
lost  the  sale  to  Greenman.  But  the  testimony  does  not  sustain  that 
allegation;  not  in  a  legal  sense. 

Before  the  Code,  a  good  way  of  ascertaining  legal  obligations  was 
by  considering  the  remedies  by  which  they  Avere  enforced.  A  sup- 
posed uniform  and  universal  remedy  in  all  cases  has,  in  a  measure, 
deprived  us  of  these  aids;  but  still  some  light  may  be  obtained  from 
analogy.  This  property  was,  from  some  cause,  detained  in  Troy, 
some  half  dozen  miles  from  Albany,  about  six  weeks;  and  the 
defendant,  during  that  time,  made  no  effort  to  send  it  to  its  desti- 
nation. This  was  inexcusable  delay,  and  undoubtedly  entitled  the 
plaintiffs  to  all  real  damages  sustained  by  them  which  were  the 
natural  consequence  of  the  neglect.  But  it  does  not  follow  that 
the  plaintiffs  had  a  right  to  refuse  and  abandon  the  property  and 
recover  its  full  value.  There  is  no  evidence  of  a  refusal  to  deliver, 
nor,  indeed,  that  the  plaintiffs  ever  demanded  the  property  or  gave 
the  defendant  notice  that  it  had  not  been  received.  They  were  not 
bound  to  do  either  to  give  them  a  right  of  action.  But  the  judge 
could  not  say  to  the  jury,  as  matter  of  law,  that  there  had  been  a 
conversion ;  nor  does  it  appear  that  the  property  had  deteriorated  in 
condition  or  had  seriously  depreciated  in  value,  nor  was  it  lost. 
Where  there  has  been  a  deterioration  and  loss,  the  carrier  is  liable. 
Davis  V.  Garrett,  6  Bing.  716;  Ellis  v.  Turner,  8  T.  E.  531;  Story 
on  Bail.  §  508.  In  Ellis  v.  Turner,  which  was  an  action  on  the 
case,  the  carrier  conveyed  the  goods  beyond  the  place  of  destina- 
tion, intending  to  deliver  them  on  his  return,  but  they  were  greatly 
damaged  by  the  sinking  of  the  vessel  without  any  want  of  ordinary 
care  or  attention  of  the  master  or  crew,  and  the  carrier  was  held 
liable  to  make  good  the  loss.  Under  the  former  system,  to  main- 
tain trover  against  a  carrier,  there  must  have  been  an  unjustifiable 
refusal  to  deliver,  or  delivery  to  a  wrong  person,  or  sale  or  destruc- 
tion, or  some  actual  wrong  or  injurious  conversion ;  something  more 
than  mere  omission.  Packard  v.  Getman,  4  Wend.  613;  Hawkins 
V.  Hoffman,  6  Hill,  586;  2  Saund.  R.  49.  i.  k.  m.  It  was  not 
necessary  that  the  wrong  should  be  intentional;  but,  as  a  general 
rule,  a  mere  nonfeasance  did  not  and  does  not  work  a  conversion. 
And  indeed  every  unauthorized  intermeddling  with  the  property  of 
another  is  not  a  conversion.  It  was  held  by  the  Court  of  Exchequer 
in  England  that  the  act  of  the  ferryman  in  putting  the  horses  of 
the  plaintiff  on  shore  out  of  his  ferry-boat,  though  the  jury  should 
find  it  was  done  wrongfully,  was  not  a  conversion  of  the  property, 


142  CARRIERS   OF   GOODS. 

unless  done  with  the  intent  to  convert  it  to  his  own  use  or  that  of 
some  third  person,  or  unless  the  act  had  the  effect  to  destroy  it  or 
change  its  quality.  Fouldes  r.  "Willoughby,  8  M.  &  W.  540.  If  it 
had  appeared  in  this  case  that  the  defendant,  from  gross  negligence, 
evincing  a  disregard  of  his  contract  and  the  rights  of  the  plaintiffs, 
had  carried  the  property  by  and  on  to  another  port,  and  had,  with 
actual  knowledge  of  all  the  facts,  kept  it  several  weeks,  I  am  not 
prepared  to  say  the  jury  might  not  have  found  that  there  was  some- 
thing more  than  omission,  or  that  the  evidence  would  not  have  sus- 
tained a  verdict  that  the  defendant  was  guilty  of  conversion,  it 
rendered  under  a  proper  charge  from  the  court.  However,  that 
point  need  not  be  decided  here,  for  it  was  not  raised  upon  the  trial; 
plaintiffs  putting  this  part  of  their  case  upon  the  ground  of  mere 
delay,  insisting  that  the  defendant  should  pay  for  the  property  as 
a  penalty  for  that  delay,  and  thus,  as  it  Avere,  impliedly  treating 
the  case  as  a  continuing  bailment,  rather  than  one  of  loss  or  actual 
conversion  to  the  use  of  the  defendant.  If  the  facts  of  the  case 
would  not  have  sustained  trover,  the  remedy  would  naturally  have 
been  an  action  of  assumpsit  or  case;  and  the  plaintiffs  have  not 
shown  that  they  would  have  been  entitled  to  recover  for  the  full 
value  of  the  proi^erty  in  either  of  those  actions.  .  .  . 

Tlie  judgment  sliuuld  be  affirmed. 


BLACKSTOCK   v.   NEW   YORK,    etc.    R.    CO. 

20  N.  Y.  48.     1859. 

Appkal  from  the  Superior  Court  of  the  city  of  New  York.  The 
action  was  brought  against  the  defendant  as  a  common  carrier,  for  a 
delay  in  the  carriage  of  a  large  quantity  of  potatoes  in  barrels  and 
sacks,  from  Hornellsville  in  Steuben  County,  to  the  city  of  New 
\i)\\.  They  were  received  by  the  defendant  on  different  days  in 
June,  1854,  and  would  have  boon  delivered,  according  to  the  usual 
course  of  business,  witliin  five  days,  but  they  were  detained  about 
seventeen  days,  and  when  delivered  were  found  to  liave  become 
unmerchantable,  and  were  nearly  worthless  on  account  of  the  delay 
in  tlieir  transportation. 

The  delay  was  occasirmed  by  tlie  refusal  of  a  large  number  of  the 
defendant's  engineers  (110  out  of  a  total  number  of  KiS)  to^work, 
under  the  following  circumstances:  On  the  15th  of  May,  1854,  the 
d«'f<-ndant  adopted  a  new  rule  for  the  government  of  its  engineers, 
U)  the  eff»-ct  tliat  tliey  were  respectively  to  be  accountable  for  run- 
ning the  train  off  the  track  at  a  switch,  at  any  station  where  the 
train  .should  stop.     This  rule  was  a  substitute  for  a  former  one  ui)on 


carrier's  liability.  143 

the  same  general  subject,  which  had  been  found  impracticable,  and 
which  had  not  therefore  been  enforced.  The  referee  before  whom 
the  case  was  tried,  found,  in  substance,  that  the  new  rule  was  a 
reasonable  and  proper  one,  which  ought  to  have  been  submitted  to 
by  the  engineers.  They  did  perform  their  duties  under  it  for  a 
time,  but  when  it  was  ascertained  that  it  would  be  steadily  enforced, 
a  combination,  Avhich  is  called  in  the  case  "a  strike,"  was  entered 
into,  and  they  gave  notice  that  they  should  stop  work  unless  the 
regulation  should  be  rescinded  in  two  days.  That  not  being  done, 
they  refused  to  perform  any  further  services,  and  persisted  for  four- 
teen days ;  at  the  expiration  of  which  period  they  returned  to  their 
duties,  and  have  since  served  under  the  new  rule.  The  defendant 
used  diligent  efforts  to  procure  other  engineers  to  run  its  trains, 
but  was  not  successful.  The  delay  in  transporting  the  potatoes 
was  owing  to  the  circumstances  mentioned.  The  potatoes  were 
owned  by,  and  the  cause  of  action  (if  any)  accrued  in  favor  of,  one 
Eosbotham,  who  had  assigned  it  to  the  plaintiff.  The  referee  found 
that  the  conduct  of  the  defendant's  engineers  did  not  furnish  a 
defence,  and  reported  in  favor  of  the  plaintiff  for  $800  damages,  for 
which  judgment  was  entered  and  affirmed  at  a  general  term.  The 
case  was  submitted  on  printed  briefs. 

Denio,  J.  The  position  that  the  defendants  are  not  responsible, 
because  the  misconduct  of  their  servants  was  wilful  and  not  negli- 
gent, cannot  be  sustained.  The  action  is  not  brought  on  account  of 
any  injury  done  to  the  property  by  the  engineers,  but  for  an  alleged 
non-performance  of  a  duty  which  the  defendants  owed  to  the  owner 
of  the  property.  If  their  inability  to  perform  was  occasioned  by 
the  default  of  persons  for  whose  conduct  they  are  responsible,  they 
must  answer  for  the  consequences  without  regard  to  the  motives  of 
those  persons.  In  the  common  case  of  a  contract  for  services,  as 
for  building  a  house,  which  the  builder  had  been  unable  to  perform 
because  his  workmen  had  abandoned  his  service,  proof  that  their 
conduct  was  wilful  and  every  way  unjustifiable  would  not  give  the 
party  injured  an  action  against  them,  nor  would  it  excuse  the  party 
who  had  made  the  contract.  A  similar  point  was  taken  in  Weed  v. 
The  Panama  Eailroad  Company,  17  N.  Y.  362,  where  the  miscon^ 
duct  of  the  defendants'  servants  in  detaining  a  train  of  cars  was 
active,  but  it  was  held  not  to  furnish  any  answer  to  the  action  for 
the  detention.  The  cases  in  which  it  has  been  held  that  if  a  ser- 
vant, while  generally  engaged  in  his  master's  business,  wilfully 
commit  a  trespass,  as  by  intentionally  driving  his  master's  carriage 
against  the  carriage  of  another  person,  the  master  is  not  liable,  have 
no  application  to  the  present  case. 

It  has  been  repeatedly  held,  and  may  be  taken  as  settled  law,  that 
a  carrier  is  not  under  the  same  absolute  obligation  to  carry  the  goods 
intrusted  to  him  in  the  usual  time  whicli  he  is  to  deliver  them 
ultimately  at  their  destination.     Conger  v.  The  Hudson  River  R.  R. 


144  CARRIERS   OF   GOODS. 

Co.,  6  Duer,  375;  Wibert  r.  The  X.  Y.  &  Erie  R.  R.  Co.,  2  Kern. 
245.  But  in  the  absence  of  a  legal  excuse,  he  is  answerable  for 
any  ilelay  to  forward  them  in  the  time  which  is  ordinarily  required 
for  transportation,  by  the  kind  of  conveyance  which  he  uses.  In 
the  case  referred  to  from  Kernan's  Reports,  we  held  that  where  a 
railroad  was  fully  equipped  with  engines  and  freight  carriages,  but 
more  property  was  offered  at  a  particular  point  than  could  be  sent 
forward  at  once,  the  delay  was  justifiable,  provided  no  unfair  prefer- 
ence was  given  to  other  freight  over  that  of  the  plaintiff.  In  the 
present  case,  the  excuse  arises  wholly  out  of  the  misconduct  of  the 
defendants'  servants  who  wrongfully  refused  to  perform  their  duty, 
and  thus  deprived  the  defendants,  for  the  time,  of  the  ability  to 
send  forward  the  property;  and  the  question  is  whether  the  defend- 
ants' case  can  be  separated  from  that  of  the  engineers,  so  that  it  can 
be  held  that  though  the  latter  were  culpable,  their  employers,  the 
defendants,  were  without  fault,  and  consequently  not  responsible  to 
the  plaintiff.  This  involves  a  consideration  of  the  legal  effect  of 
the  relations  which  exist  between  these  several  parties.  In  the  first 
place,  there  was  no  privity  between  the  plaintiff'  and  the  engineers. 
The  latter  owed  no  duty  to  the  former  which  the  law  can  recognize. 
If  they  had  committed  a  positive  tort  or  trespass  upon  the  property, 
the  owner  miglit  pass  by  the  employers  and  hold  them  responsible, 
but  for  a  nonfeasance,  or  simple  neglect  of  duty,  they  were  only 
answerable  to  their  employers.  The  maxim  in  such  cases  is  re.yion- 
dcat  superior.  Story  on  Agency,  §  309;  Denny  v.  The  Manhattan  Co., 
2  Denio,  115;  s.  c.  in  error,  5  id.  039.  Altliough  the  nature  of 
the  contract  between  the  railroad  company  and  tlie  engineers  is  not 
disclosed  in  the  finding,  it  is  quite  improbable  that  it  was  such  that 
the  latter  might  throw  up  their  employment  upon  two  days'  notice 
without  any  legal  cause.  If  it  were  of  that  character,  the  liability, 
moral  as  well  as  legal,  would  rest  upon  the  defendants,  for  in  that 
case  they  would  have  neglected  a  most  ordinary  precaution  for  secur- 
ing the  continuous  running  of  their  trains.  Assuming  then  that 
abandoning  tlieir  work  was  a  breach  of  contract  on  the  part  of  the 
engineers,  they  by  that  act  became  resi)onsible  to  the  defendants  for 
all  its  direct  consequences.  The  case  therefore  is  one  in  wliich  the 
actual  delinquents,  through  whose  fault  the  injury  was  sustained, 
were  responsible  to  the  defendants,  but  were  not  responsible  to  the 
plaintiff.  This  shows  the  eriuity  of  the  rule,  whicli  holds  the  mas- 
ter or  employer  answerable  in  sueh  cases.  Its  jjolicy  is  not  less 
apparent.  Those  who  intrust  tlieir  goods  to  carriers  liave  no  means 
of  ascertaining  the  character  or  disposition  of  their  subordinate 
atrents  or  servants;  they  have  no  agency  in  their  selection,  and  no 
control  over  their  actions.  In  the  case  of  a  loss  by  the  misconduct 
of  a  servant,  the  party  injured  has  no  means  of  ascertaining  wlictht-r 
due  caution  was  exercised  by  the  master  in  employing  him,  or  i)ru- 
dence  in  retaining  him;  an<l  in  the  case  of  a  controversy  between 


carrier's  liability.  145 

the  master  and  the  servant  as  to  which  was  the  real  delinquent,  the 
owner  of  the  property  must  generally  be  without  the  necessary  evi- 
dence to  charge  the  liability  upon  the  master.  The  rule  which  the 
law  has  adopted,  by  which  the  master  is  held  responsible  for  the 
acts  of  his  servants,  is  the  one  best  calculated  to  secure  the  observ- 
ance of  good  faith  on  the  part  of  persons  intrusted  with  the  property 
of  others.  The  motive  of  self-interest  is  the  only  one  adequate  to 
secure  the  highest  degree  of  caution  and  vigilance  by  the  master. 
The  principle  itself  is  extremely  well  settled.  Story  on  Agency, 
§  452;  2  Kent  Com.  259;  Harlow  v.  Humiston,  6  Cow.  189;  Ellis 
V.  Turner,  8  Term  R.  531. 

I  cannot  see  anything  in  the  circumstances  of  the  defendants  to 
take  the  case  out  of  the  rule.  Being  a  corporation,  all  their  business 
must  necessarily  be  conducted  by  agents,  and  if  they  are  not  liable 
for  their  acts  and  omissions,  parties  dealing  with  them  have  no 
remedy  at  all.  A  railroad  corporation  is  no  doubt  peculiarly  ex- 
posed to  loss  from  the  misconduct  of  its  engineers;  and  in  the  present 
case  it  does  not  appear  that  the  slightest  blame  can  attach  to  any  of 
the  superior  officers  of  the  company.  Still  the  property  intrusted 
to  the  defendants  to  carry  has  been  lost  from  a  failure  on  their  part 
to  perform  the  duty  with  which  they  were  charged,  and  the  only 
answer  which  they  are  able  to  make  to  the  demand  for  compensa- 
tion is  that  the  failure  was  caused  by  the  misconduct  of  their  ser- 
vants. This  we  have  seen  cannot  avail  them  as  a  defence.  I  have 
looked  into  the  exceptions  to  the  rulings  of  the  judge  upon  the  trial, 
and  think  those  rulings  were  in  both  the  instances  where  exceptions 
were  taken  entirely  correct. 

The  judgment  of  the  Supreme  Court  must  be  affirmed. 


GEISMER  V.   LAKE   SHORE,    etc.    R.    CO.,   Appellant. 

102  N.  Y.  563.     1886. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  fifth  judicial  department,  entered  upon  an  order  made  at  the 
October  Term,  1884,  which  overruled  defendant's  exceptions  and 
directed  judgment  for  plaintiff  on  a  verdict  (reported  below,  34 
Hun,  50). 

This  action  was  brought  to  recover  damages  for  alleged  negligence 
on  the  part  of  defendant  in  the  performance  of  a  contract  for  trans- 
portation of  livestock. 

Earl,  J.  We  are  of  opinion  that  the  learned  trial  judge  fell  into 
error  as  to  rules  of  law  of  vital  and  controlling  importance  in  the 
disposition  of  this  case. 

10 


146  CARRIERS   OF   GOODS. 

A  railroad  carrier  stands  upon  the  same  footing  as  other  carriers, 
and  may  excuse  delay  in  the  delivery  of  goods  by  accident  or  mis- 
fortune not  inevitable  or  produced  by  the  act  of  God.  All  that  can 
be  required  of  it  in  any  emergency  is  that  it  shall  exercise  due  care 
and  diligence  to  guard  against  delay  and  to  forward  the  goods  to 
their  destination;  and  so  it  has  been  uniformly  decided.  "Wibert  v. 
y.  Y.  &  Erie  Kailroad  Co.,  12  N.  Y.  245;  Blackstock  v.  N.  Y.  & 
Erie  Railroad  Co.,  20  id.  48. 

In  the  absence  of  special  contract  there  is  no  absolute  duty  resting 
upon  a  railroad  carrier  to  deliver  the  goods  intrusted  to  it  within 
what,  under  ordinary  circumstances,  would  be  a  reasonable  time. 
Not  only  storms  and  floods  and  other  natural  causes  may  excuse 
delay,  but  the  conduct  of  men  may  also  do  so.  An  incendiar}-  may 
burn  down  a  bridge,  a  mob  may  tear  up  the  tracks  or  disable  the 
rolling  stock  or  interpose  irresistible  force  or  overpowering  intimi- 
dation, and  the  only  duty  resting  upon  the  carrier,  not  otherwise  in 
fault,  is  to  use  reasonable  efforts  and  due  diligence  to  overcome 
the  obstacles  thus  interposed  and  to  forward  the  goods  to  their 
destination. 

While  the  court  below  conceded  tliis  to  be  the  general  rule,  it  did 
not  give  the  defendant  the  benefit  of  it  because  it  held  that  the  men 
engaged  in  the  violent  and  riotous  resistance  to  the  defendant  were 
its  employees  for  whose  conduct  it  was  responsible,  and  in  that  hold- 
ing was  the  fundamental  ernn-  committed  by  it.  It  is  true  that 
these  men  had  been  in  the  employment  of  the  defendant.  But  they 
left  and  abandoned  that  employment.  They  ceased  to  be  in  its  ser- 
vice or  in  any  sense  its  agents,  for  whose  conduct  it  was  responsible. 
They  not  only  refused  to  obey  its  orders  or  to  render  it  any  service, 
but  tliey  wilfully  arrayed  themselves  in  positive  hostility  against  it, 
and  intimidated  and  defeated  the  efforts  of  employees  who  wt-re  will- 
ing to  serve  it.  They  became  a  mob  of  vicious  law-breakers  to  be 
dealt  with  by  the  government,  whose  duty  it  was,  by  the  use  of 
adequate  force,  to  restore  order,  enforce  proper  respect  for  private 
property  and  private  rights  and  obedience  to  law.  If  they  had 
burned  down  Ijridges,  torn  up  tracks,  or  gone  into  jiassenger  cars 
and  assaulted  passengers,  upon  what  principle  could  it  l)e  held  tliat 
as  to  such  acts  they  were  the  employees  of  the  defendant  for  whom 
it  was  res])onsil)le?  If  they  had  sued  the  defendant  for  wages  for 
the  eleven  days  when  they  were  thus  engaged  in  blocking  its  busi- 
ness, no  one  will  claim  that  tliey  eould  have  recovered. 

It  matters  not,  if  it  be  true,  that  the  strike  was  conceived  and 
organized  while  the  strikers  were  in  the  employment  of  tlu'  defend- 
ant. In  doing  that,  they  were  not  in  its  service  or  seeking  to  pro- 
mote its  interests  or  to  discharge  any  duty  they  f)wed  it;  but  tliey  were 
engaged  in  a  matter  entirely  outside  of  their  emiiloyment  aiul  seek- 
ing their  own  ends  and  not  the  interests  of  the  defendant.  The 
I  mischief  did    not  come  from   tlie  .'strike  —  from  the    refusal  of  the 


caerier's  liability.  147 

employees   to  work,  but  from   their  violent  and  unlawful  conduct  \ 
after  they  had  abandoned  the  service  of  the  defendant.  1 

Here  upon  the  facts,  which  we  must  assume  to  be  true,  there  was 
no  default  on  the  part  of  the  defendant.  It  had  employees  who  were 
ready  and  willing  to  manage  its  train  and  carry  forward  the  stock, 
and  thus  perform  its  contract  and  discharge  its  duty;  but  they  were 
prevented  by  mob  violence  which  the  defendant  could  not  by  reason- 
able efforts  overcome.  That  under  such  circumstances  the  delay 
was  excused  has  been  held  in  several  cases  quite  analogous  to  this 
which  are  entitled  to  much  respect  as  authorities.  Pittsburg  &  C. 
R.  R.  Co.  V.  Hogen,  84  111.  36;  Pittsburg,  C.  W.  L.  R.  Co.  v. 
Hallowell,  65  Ind.  188;  Bennett  v.  L.  S.  &  M.  S.  R.  R.  Co.,  6  Am. 
&  Eng.  R.  Cas.  391;  I.  &  W.  L.  R.  R.  Co.  v.  Juntzen,  10  Bard  well, 
295. 

The  cases   of  Weed  v.  Panama  R.  R.   Co.,  17  N.   Y.  362,   and 
Blackstoc^^;.  N.  Y.  &Erie  R.  R.  Co.,  IBosw.  77;  affirmed,  20  X.  Y.     y. 
48  [142],  do  not  sustain  the  plaintiff's  contention  here.     If  in  this     *^ 
case   the   employees   of  the  defendant  had   simply  refused  to  dis-   <*     "^^ 
charge  their  duties,  or  to  work,  or  had  suddenly  abandoned  its  ser-         ^     « 
vice,  offering  no  violence,  and  causing  no  forcible  obstruction  to  its  "^  •    ?> 
business,  those  authorities  could  have  been  cited  for  the  maintenance 
of  an  action  uj)on  principles  stated  in_the  opinions  of  those  cases. 

Judgment  reversed.^ 


DAVIS   V.    GARRETT. 
Common  Pleas.     6  Bing.  716.     1830. 

The  declaration  stated,  that  theretofore,  to  wit,  on  22d  of  Jan- 
uary, 1829,  at  London,  in  the  parish  of  St.  Mary-le-Bow,  in  the 
ward  of  Cheap,  the  p^laintiff,  at  the  special  instance  and  request  of 
the  defendant,  delivered  to  the  defendant  on  board  a  certain  barge 
or  vessel  of  the  defendant  called  the  "Safety,"  and  the  defendant 
then  and  there  had  and  received  in  and  on  board  of  the  said  barge 
or  vessel  from  the  plaintiff  a  large  quantity,  to  wit,  114^  tons  of 
lime  of  the  plaintiff  of  great  value,  to  wit,  of  the  value  of  £100,  to 

1  Where  employees  suddenly  refuse  to  work,  and  are  discharged,  and  delay  results 
from  the  failure  of  the  carrier  to  supply  promptly  their  places,  such  delay  is  attrib- 
utable to  the  misconduct  of  the  employees  in  refusing  to  do  their  duty,  and  this 
misconduct  in  such  case  is  justly  considered  the  proximate  cause  of  the  delay  ;  but 
when  the  places  of  the  recusant  employees  are  promptly  supplied  by  other  competent 
men,  and  the  "  strikers  "  then  prevent  the  new  employees  from  doing  duty  by  lawless 
and  irresistible  violence,  the  delay  resulting  solely  from  this  cause  is  not  attributable 
to  the  misconduct  of  employees,  but  arises  from  the  misconduct  of  persons  for  whose 
acts  the  carrier  is  in  uo  manner  responsible.  Per  Dickey,  J.,  in  Pittsburg  &c.  R.  Co. 
V.  Hazen,  84  111.  36. 


143  CAKRIEKS   OF   GOODS. 

be  by  the  defendant  carried  and  convey t-d  in  and  on  board  the  said 
barge  or  vessel  from  a  certain  place,  to  -witj  Bewly  Cliff  in  the  county 
of  Kent,  to  the  Kegent's  Canal  in  the  county  of  Middlesex,  the  act 
of  God,  tlie  king's  enemies,  tire,  and  all  and  every  other  dangers 
and  accidents  of  the  seas,  rivers,  and  navigation,  of  what  nature  or 
kind  soever  excepted,  for  certain  reasonable  reward  to  be  therefore 
paid  by  the  plaintiff  to  the  defendant :  that  the  said  barge  or  vessel 
afterwards,  to  wit,  on,  etc.,  at,  etc.,  departed  and  set  sail  on  the 
intended  voyage,  then  and  there  having  the  said  lime  on  board  of 
the  same  to  be  carried  and  conveyed  as  aforesaid,  except  as  afore- 
said, and  it  thereby  then  and  there  became  and  Avas  tlie  duty  of  the 
defendant  to  have  carried  and  conveyed  the  said  lime  on  board  of 
the  said  barge  or  vessel  from  Bewly  Cliff  to  the  Regent's  Canal,  the 
act  of  God,  and  such  other  matters  and  things   excepted  as  were 
above  mentioned  to  have  been  excepted  by  and  according  to  the 
direct,  usual,  and  customary  way,  course,  and  passage,  without  any 
voluntary  and  unnecessary  deviation  or  departure  from,  or  delay  or 
hindrance  in  the  same;  but  the  defendant,  not  regarding  his  duty  in 
that  behalf,  but  contriving  and  wrongfully  intending  to  injure  ami 
prejudice  the  plaintiff  in  that  respect,  did  not  carry  or  eoiwey  the 
said  lime  on  board  of  the  barge  or  vessel  from  Uewly  Cliff  aforesaid 
to  the  Kegent's  Canal,  although  not  prevented  by  the  acts,  matters, 
or  things  excepted  as  aforesaid.  Or  any  of  them,  by  and  according  to 
the  direct,  usual,  customary  way  and  passage,  without  any  volun- 
tary and  unnecessary  deviation  or  departure  from,  or  delay  or  hin- 
drance in  the  same,  but  on  the  contrary  thereof,  afterwards,  and 
before  the  arrival  of  the  said  barge  or  vessel  as  aforesaid  at  the 
Kegent's  Canal,  the  defendant  by  one  John  Town,  the  master  of  the 
said  barge  or  vessel,  and  the  agent  of  the  defendant  in  the  behalf, 
to  wit,  at,  etc.,  without  the  knowledge  and  against  the  will  of  tlie 
plaintiff,  voluntarily  and  unnecessarily  deviated  and  departed  from 
and  out  of  such  usual  and  customary  way,  course,  and  passage,  with 
the  said  barge  or  vessel  so  having  the  said  lime  on  board  of   the 
same,  to  certain  jiarts  out  of  such  usual  and  customary  course  and 
passage,  to  wit,  to  a  certain  jjlace  called  the  East  Swale,  and  to  a 
certain  place  called  Whitstable  Kay,  and  did  then  and  there  volun- 
tarily and  unnecessarily  carry  and  navigate  the  said  barge  or  vessel 
with  the  lime  on  board  thereof  as  aforesaid  to  the  said  parts  out  of 
sudi  usual  an<l  customary  course  and  i)assage  as  aforesaid,  and  delay 
and  detain  the  said  last-mentioned  barge  or  vessel  witli  the  lime  on 
board  thereof,  for  a  long  space  of  time,  to  wit,  for  the  space  of 
twenty-four  hours  then  next  following:  and  the  said  barge  or  vessel 
80  liaving  tlie  said  lime  on  board  of  the  same,  was  by  reason  of  sueli 
deviation  and  departure,  and  delay  and  detention  out  of  suf^h  usunl 
and  customary  course  and   passage,  and  before  her  arrival  at  the 
Regent's  Canal  aforesaid,  to  wit,  on,  etc.,  at,  etc.,  exposed  to  and 
assailed  by  a  great  storm  and  great  and  heavy  sea,  and  was  thereby 


carriek's  liability.  149 

then  and  there  wrecked,  shattered,  and  broken,  and  by  means  thereof 
the  said  irine'l)f  the  plaintiff  so  on  board  the  said  barge  or  vessel  as 
aforesaid,  became  and  was  injured,  burned,  destroyed,  and  wholly 
lost  to  the  plaintilf ,  to  wit,  at,  etc.,  whereby  the  plaintiff  lost  divers 
great  gains,  profits,  and  emoluments,  amounting  to  a  large  sum  of 
money,  to  wit,  the  sum  of  £50,  which  he  might  and  otherwise  would 
have  made  thereby,  to  wit,  at,  etc. 

At  the  trial  before  Tindal,  C.  J.,  London  sittings  after  Michael- 
mas Term  last,  it  appeared  that  the  master  of  the  defendant's  barge 
had  deviated  from  the  usual  and  customary  course  of  the  voyage 
mentioned  in  the  declaration,  without  any  justihable  cause;  and 
that  afterwards,  and  whilst  such  barge  was  out  of  her  course,  in 
consequence  of  violent  and  tempestuous  weather,  the  sea  communi- 
cated with  the  lime,  which  thereby  became  heated,  and  the  barge 
caught  fire;  and  the  master  was  compelled,  for  the  preservation  of 
himself  and  the  crew,  to  run  the  barge  on  shore,  where  both  the 
lime  and  the  barge  were  entirely  lost. 

A  verdict  having  been  found  for  the  plaintiff, 

Taddy,  Sergt.,  obtained  a  rule  nisi  for  a  new  trial,  or  to  arrest  the 
judgment. 

Tindal,  C.  J.  There  are  two  points  for  the  determination  of  the 
court  upon  this  rule:  first,  whether  the  damage  sustained  by  the 
plaintiff  was  so  proximate  to  the  wrongful  act  of  the  defendant  as 
to  form  the  subject  of  an  action;  and,  secondly,  whether  the  decla- 
ration is  sufficient  to  support  the  judgment  of  the  court  for  the 
plaintiff. 

As  to  the  first  point  it  appeared  upon  the  evidence  that  the 
master  of  the  defendant's  barge  had  deviated  from  the  usual  and 
customary  course  of  the  voyage  mentioned  in  the  declaration  with- 
out any  justifiable  cause;  and  that  afterwards,  and  whilst  such  barge 
was  out  of  her  course,  in  consequence  of  stormy  and  tempestuous 
weather,  the  sea  communicated  with  the  lime,  which  thereby  became 
heated,  and  the  barge  caught  fire,  and  the  master  was  compelled  for 
the  preservation  of  himself  and  the  crew  to  run  the  barge  on  shore, 
where  both  the  lime  and  the  barge  were  entirely  lost. 

Now  the  first  objection  on  the  part  of  the  defendant  is  not  rested, 
as  indeed  it  could  not  be  rested,  on  the  particular  circumstances 
which  accompanied  the  destruction  of  the  barge;  for  it  is  obvious 
tliat  the  legal  consequences  must  be  the  same,  whether  the  loss  was 
immediately,  by  the  sinking  of  the  barge  at  once  by  a  heavy  sea, 
when  she  was  out  of  her  direct  and  usual  course,  or  whether  it  hap- 
pened at  the  same  place,  not  in  consequence  of  an  immediate  death's 
wound,  but  by  a  connected  chain  of  causes  producing  the  same  ulti- 
mate event.  It  is  only  a  variation  in  the  precise  mode  by  which  the 
vessel  was  destroyed,  which  variation  will  necessarily  occur  in  each 
individual  case. 

But  the  objection  taken  is,  that  there  is  no  natural  or  necessary 


150  CARRIERS   OF   GOODS. 

connection  between  the  wrong  of  the  master  in  taking  the  barge  out 
of  its  proper  course,  and  the  loss  itself;  for  that  the  same  loss  might 
have  been  occasioned  by  the  very  same  tempest,  if  the  barge  had 
proceeded  in  her  direct  course. 

But  if  this  argument  were  to  prevail,  the  deviation  of  the  master, 
which  is  undoubtedly  a  ground  of  action  against  the  owner,  would 
never,  or  only  under  very  peculiar  circumstances,  entitle  the  i)lain- 
tiff  to  recover.  For  if  a  ship  is  captured  in  the  course  of  deviation, 
no  one  can  be  certain  that  she  might  not  have  been  captured  if  in 
her  proper  course.  And  yet,  in  Tarker  r.  James,  4  (Jampb.  112, 
where  the  ship  was  captured  whilst  in  the  act  of  deviation,  no  such 
ground  of  defence  was  even  suggested.  Or,  again,  if  the  ship  strikes 
against  a  rock,  or  perishes  by  storm  in  the  one  course,  no  one  can 
predicate  that  she  might  not  equally  have  struck  upon  another  rock, 
or  met  with  the  same  or  another  storm  if  pursuing  her  right  and 
ordinary  voyage. 

The  same  answer  might  be  attempted  to  an  action  against  a 
defendant  who  had,  by  mistake,  forwarded  a  parcel  by  the  wrong 
conveyance,  and  a  loss  had  thereby  ensued;  and  yet  tiie  defendant 
in  that  case  would  undoubtedly  be  liable. 

But  we  think  the  real  answer  to  the  objection  is,  that  no  wrong- 
doer can  be  allowed  to  apportion  or  qualify  his  own  wrong ;  and  that 
as  a  loss  has  actually  happened  whilst  his  wrongful  act  was  in  oper- 
ation and  force,  and  which  is  attributable  to  his  wrongful  act,  he 
cannot  set  up  as  an  answer  to  the  action  the  bare  possibility  of  a 
loss,  if  his  wrongful  act  had  never  been  done.  It  might  admit  of  a 
different  construction  if  he  could  show,  not  only  that  the  same  loss 
might  have  happened,  but  that  it  must  have  happened  if  the  act 
comi.lained  of  had  not  been  done;  but  there  is  no  evidence  to  that 
>  extent  in  the  present  case. 

Upon  the  objection  taken  in  arrest  of  judgment,  the  defendant 
relies  on  the  authority  of  the  case  of  Max  r.  Roberts.  The  first 
ground  of  objection  uj.on  which  the  judgment  for  the  defendant  in 
that  case  was  afiirmed  is  entirely  removed  in  the  present  case.  For 
in  this  declaration  it  is  distinctly  alleged  that  tlie  defendant  had 
and  received  the  lime  in  ami  on  board  of  his  barge,  to  be  by  him 
carried  and  conveyed  on  the  voyage  in  question. 

As  to  the  second  objection  mentioned  by  the  learned  Lord,  in 
giving  the  judgment  in  that  case,  viz.,  that  there  is  no  allegation 
in  the  declaration  that  there  was  an  undertaking  to  carry  diicctly  to 
Waterford,  it  is  to  be  observed,  that  this  is  mentioned  as  an  addi- 
tional ground  for  the  ju<lgment  of  the  Court,  after  one  in  which  it 
may  fairly  be  inferred  from  the  language  of  the  Chief  Justice  that 
all  the  judges  liad  agreed;  and  which  iirst  objection  ai)i.ears  tons 
amjdy  sufficient  to  support  the  judgment  of  the  Court.  We  oannot, 
therefore,  give  to  that  .second  reason  the  same  weight  as  if  it  were 
the  only  ground  of  the  judgment  of  tlie  Court.     AikI.  at  all  events, 


carrier's  liability.  151 

we  tliink  there  is  a  distinction  between  the  language  of  this  record 
and  that  of  the  case  referred  to.  In  the  case  cited,  the  allegation 
was,  that  it  was  the  duty  of  the  defendant  to  carry  the  goods  directly 
to  Waterford;  but  here  the  allegation  is,  "that  it  was  his  duty  to 
carry  the  lime  by  and  according  to  the  direct,  usual,  and  customary 
way,  course,  and  passage,  without  any  voluntary  and  unnecessary 
deviation  and  departure." 

The  words  usual  and  customarij  being  added  to  the  word  direct, 
more  particularly  when  the  breach  is  alleged  in  "unnecessarily 
deviating  from  the  usual  and  customary  way,"  must  be  held  to 
qualify  the  meaning  of  the  word  direct,  and  substantially  to  signify 
that  the  vessel  should  proceed  in  the  course  usually  and  customarily 
observed  in  that  her  voyage. 

And  we  cannot  but  think  that  the  law  does  imply  a  duty  in  the 
owner  of  a  vessel,  whether  a  general  ship  or  hired  for  the  special 
purpose  of  the  voyage,  to  proceed  without  unnecessary  deviation  in 
the  usual  and  customary  course. 

We  therefore  think  the  rule  should  be  discharged,  and  that  judg- 
ment should  be  given  for  the  plaintiff. 

Rule  discharged. 


CONSTABLE   v.   NATIONAL   STEAMSHIP   CO. 
154  U.  S.  51.     1894. 

Mr.  Justice  Brown.  This  case  involves  the  liabilitx  of  a  steam- 
ship companxfor  the  loss^by  fire  of  a  consignment  of  goods  unloaded 
without  personal  notice^  to  theconsignee  upon  the  wharf  of  a  com- 
pany other  than  the  one  owning  the  ve_ssel._ 

By  the  Limited  Liability  Act,  Rev.  Stat.  4282  [721],  no  ship-owner 
is  liable  to  answer  for  the  loss  of  any  merchandise  shipped  upon  his 
vessel  by  reason  of  any  fire  "  happening  to  or  on  board  the  vessel, 
unless  such  fire  is  caused  by  the  design  or  neglect  of  such  owner," 
and  in  the  case  of  The  Scotland,  105  U.  S.  24,  the  exemptions  and 
limitations  of  this  act  were  held  to  apply  to  foreign  as  well  as 
domestic  vessels.  A  similar  exemption  from  fire  happening  with- 
out the  "fault  or  privity"  of  the  owner  is  contained  in  the  British 
Merchants'  Shipping  Act  of  1854,  17  and  18  Vict.  c.  104,  sec.  503. 
The  bill  of  lading  in  this  case  also  contains  exemptions  of  liabilitv 
from  loss  caused  by  fire  "  before  loading  in  the  ship  or  after  unload- 
ing." There  is  no  comma  after  the  word  "loading"  or  "ship,"  but 
obviously  it  should  be  read  as  if  there  were.  In  view  of  the  fact 
that,  under  no  aspect  of  the  case,  would  the  owner  of  the  vessel  be 
liable  for  the  consequence  of  any  fire  occurring  on  board  of  such  a 
vessel  without  his  fault,  and  that  an  attempt  is  made  in  this  case 


152  CAKKIEKS    OF   GOODS. 

to  impose  the  liability,  not  of  a  warehouseman,  but  of  a  common 
carrier  and  insurer  against  fire,  after  the  contract  of  carriage  has 
been  fully  performed,  it  would  seem  that  such  liability  ought  not 
to  be  raised  out  of  the  contract  in  this  case  except  upon  clear  evi- 
dence, and  for  the  most  cogent  reasons.  The  liabilit}'  of  the  com- 
pany for  the  goods,  while  upon  the  wharf  is  a  mere  incident  to  its 
liability  for  them  while  upon  the  ship;  and  if  the  liability  is  more 
extensive  under  the  incidental  contract  of  storage  than  it  was  under 
the  principal  contract  of  carriage  it  is  an  exception  to  the  general 
rule  that  the  incidental  liability  of  a  contracting  party  is  not  broader_ 
than_his  liability  upon  the  principal  contract. 

It  is  claimed,  however,  that  the  berthing  of  this  ship  at  a  pier 
other  than  her  own  was  in  legal  effect  a  deviation,  which  rendered 
the  company  an  insurer  of  the  cargo  discharged  at  such  pier  without 
notice,  until  its  actual  delivery  to  the  consignee.  In  the  law  mari- 
time a  deviation  is  defined  as  a  "  voluntary  departure  without  neces- 
sity, or  any  reasonable  cause,  from  the  regular  and  usual  course  of 
the  ship  insured."  1  Bouvier's  Law  Diet.  417;  Hostetter  v.  Park, 
137  U.  S.  30,  40;  Davis  v.  Garrett,  6  Bing.  71(3;  Williams  v.  Grant, 
1  Conn.  4S7;  as,  for  instance,  where  a  ship  bound  from  New  York 
to  Norwich,  Conn.,  went  outside  of  Long  Island,  and  lost  her  cargo 
in  a  storm,  Crosby  v.  Fitch,  12  Conn.  410;  or  where  a  carrier  is 
guilty  of  unnecessary  delay  in  pursuing  a  voyage  or  in  the  transpor- 
tation of  goods  by  rail.  Michaels  v.  N.  Y.  Central  iJailroad,  30 
N.  Y.  564.  But,  if  such  deviation  be  a  customary  incident  of  the 
voyage,  and  according  to  the  known  usage  of  trade,  it  neitiier  avoids 
a  policy  of  insurance,  nor  subjects  the  carrier  to  the  resi)onsibility 
of  an  insurer.  Oliver  v.  Maryland  Ins.  Co.,  7  Crancli,  487;  Colum- 
bian Ins.  Co.  V.  Catlett,  12  Wheat.  383.  In  Hostetter  <•.  Park,  137 
U.  S.  30,  it  was  lield  to  be  no  deviation,  in  the  Pittsburg  and  New 
Orleans  barge-trade,  to  laud  and  tie  up  a  tow  of  barges,  and  detach 
from  the  tow  such  barge  or  barges  as  were  designated  to  take  on 
cargo  en  route,  and  to  tow  the  same  to  the  several  points  where  the 
cargo  might  be  stored,  it  having  been  shown  tliat  such  delays  were 
within  the  general  and  established  usage  of  tlie  trade.  So,  in 
Gracie  v.  Marine  Ins.  Co.,  8  Cranch,  75,  it  was  lield  to  be  no  devia- 
tion to  land  goods  at  a  lazaretto  or  quarantine  station,  if  the  usage 
of  the  trade  permitted  it,  though  l»y  the  bill  of  lading  tlie  goculs 
were  "to  be  safely  landed  at  Leghorn."  See  also  l'hel]is  r.  Hill. 
1  Q.  P..  1).  (1801),  005. 

Upon  the  whole  case  we  are  of  opinion :  — 

1,  That  the  stipulation  in  the  bill  of  lading  tliat  resjjondent 
should  not  be  liable  for  a  fire  happening  alter  unloading  the  cargo 
waa  reasonable  and  valid. 

2.  That  the  discharge  of  the  cargo  at  the  Iniii.in  i)ier  was  not,  in 


carrier's  liability.  153 

the  eye  of  the  law,  a  deviation  such  as  to  render  the  carrier  an 
insurer  of  the  goods  so  unladen. 

The  decree  of  the  Circuit  Court  is  therefore  affirmed. 


STEAMBOAT   LYNX  v.   KING. 
12  Mo.  272.     1848. 

KixG  and  Fisher  brought  their  action  against  the  "S.  B.  Lynx," 
on  a  contract  of  affreightment.  A  parcel  of  wheat  (880  sacks) ,  was 
shipped  on  board  the  "  Lynx  "  and  her  barges,  from  a  place  in  Illinois, 
above  the  lower  rapids,  consigned  to  K.  &  F.  at  St.  Louis.  The 
barge  that  contained  the  wheat  was  brought  down  in  tow  by  the 
"Lynx,"  to  the  head  of  the  rapids.  The  water  was  too  low  for  the 
boat  to  descend  the  rapids  with  her  barges  in  tow,  and  therefore 
the  barge  which  contained  the  wheat  (and  other  wheat  belonging  to 
others) ,  after  being  lightened  by  putting  200  sacks  of  wheat  on  board 
of  the  "Lynx,"  was  taken  down  to  the  foot  of  the  rapids  at  Keokuk 
in  safety,  and  in  the  manner  accustomed  there,  and  was  moored  there 
in  the  accustomed  place,  and  was  stanch  and  well  manned.  In  the 
after  part  of  the  same  day,  while  the  barge  was  waiting  for  the 
"  Lynx  "  to  descend  the  rapids,  a  violent  storm  arose,  and  forced  a 
great  quantity  of  the  water  of  the  river  over  the  gunwale  and  into 
the  barge,  by  which  a  portion  of  the  wheat  was  wet.  Every  effort 
was  made  by  the  crew  to  protect  the  barge  and  its  cargo  from  the 
storm  and  wetting.  The  hands  worked  all  night,  and  part  of  the 
next  day,  to  free  the  boat  from  water.  The  storm  and  wetting  of 
the  wheat  occurred  in  the  evening  and  night  of  Tuesday,  and  in  the 
afternoon  of  Wednesday,  the  "Lynx"  descended  the  rapids,  and  tak- 
ing the  barge  in  tow,  ran  down  to  St.  Louis  in  thirty  hours,  arriv- 
ing there  on  Thursday  evening,  and  delivered  the  freight  on  the 
levee  next  day,  Friday. 

The  time  was  the  latter  part  of  May,  and  the  weather  was  very 
warm  and  damp,  with  frequent  rains. 

The  defendant  moved  the  court  for  the  following  instruction : 

"If  the  jury  believe  from  the  evidence  that  the  wheat  in  question 
was  damaged  by  an  unavoidable  accident  of  the  river,  and  not  by  the 
negligence  of  the  officers  and  crew  of  the  'Lynx,'  they  ought  to  tind 
for  the  defendant,  as  to  the  wheat." 

Which  instruction  the  court  refused  to  give,  but  gave  to  the  jury, 
at  the  instance  of  the  plaintiffs,  the  following:  — 

"It  was  the  duty  of  the  defendant  to  use  all  the  means  in  his 
power  to  cause  the  wheat  to  be  dried  after  it  was  wet  by  the  storm ; 


i:.4  CARRIERS   OF   GOODS. 

and  if  the  jury  believe  from  the  evidence  that  the  wheat  might  have 
been  dried  by  the  defendant,  and  he  did  not  do  it,  then  the  defend- 
ant is  liable  for  all  damage  to  the  wheat  by  reason  thereof."' 

Under  this  instruction,  there  was  a  verdict  for  the  plaintiffs,  and 
a  motion  for  a  new  trial,  which  was  overruled;  and  the  defendant 
brings  the  case  here  by  a  writ  of  error. 

2s  APTON,  Judge,  delivered  the  opinion  of  the  court. 
The  only  question  presented  by  this  record  arises  out  of  the 
refusal  of  the  court  to  give  an  instruction  asked  on  behalf  of  the 
boat,  and  the  giving  an  instruction  for  the  plaintiiTs  King  tS:  Fisher. 
The  instruction  given  was  this :  "  It  was  the  duty  of  the  defendant 
to  use  all  the  means  in  his  power  to  cause  the  wheat  to  be  dried 
after  it  was  wet  by  the  storm;  and  if  the  jury  believe  from  the  evi- 
dence that  the  wheat  might  have  been  dried  by  the  defendant,  and 
he  did  not  do  it,  then  the  defendant  is  liable  for  all  damages  to  the 
wheat  by  reason  thereof."  The  instruction  refused  was  as  follows: 
"If  the  jury  believe  that  the  wheat  in  question  was  damaged  by  an 
unavoidable  accident  of  the  river,  and  not  by  the  negligence  of 
the  officers  and  the  crew  of  the  '  Lynx, '  tliey  ought  to  find  for  the 
defendants." 

The  doctrine  that  a  common  carrier  is  responsible  for  all  losses, 
except  those  occasioned  by  the  act  of  God,  or  the  public  enemy,  or 
such  others  as  are  expressly  excepted  in  the  bill  of  ladiug,  has  been 
uniformly  maintained  in  this  State.  Dagget  v.  Price  &  Shaw,  3 
Mo.  R.  2G4.  Experience  has  shown  the  general  results  of  this 
principle  to  be  highly  beneficial  in  the  main,  although  perhaps  its 
application  in  particular  cases  may  have  been  harsh,  and  we  should 
regret  to  see  any  departure  from  it.  But  Avhen  the  carrier  is  held 
resptonsible,  not  only  for  every  damage  not  occasioned  by  inevitable 
accident,  but  also  for  the  consequences  of  such  accidents  themselves, 
in  cases  where  any  possible  skill  or  laljor  could  restore  the  value  of 
the  property  injured,  either  in  whole  or  in  part,  the  doctrine,  it 
strikes  us,  is  carried  to  an  extent  not  warranted  by  the  law,  and  not 
justified  by  reason  or  principle  of  public  policy. 

In  order  to  view  this  matter  in  a  proper  light,  we  must  recur  to 
the  original  and  well-settled  jirineiple,  — a  carrier  is  responsible  for 
all  losses  brought  about  by  his  own  acts,  or  w:int  of  action,  for  every 
loss  which  could  have  been  prevented  by  human  exertion,  with  the 
exceptions  heretofore  stated.  If  a  tempest  si)rings  up,  or  damage 
!■  Ml  any  other  quarter  threatens,  he  is  certainly  to  use  all  jtroper 
•  ;i  firms  to  i»revent  loss,  and  when  an  injury  has  been  sustained  by 
a  cause  beyond  his  power  to  prevent,  to  use  every  means  to  ]trcvent 
further  injury.  A  damage  may  result  to  the  bailment  after  an 
injury  received  from  inevitable  accident,  which,  although  it  would 
not  have  Itappened  ha<l  not  the  accident  occurred,  yet  was  not  neces- 
aarily  the  result  of  that  accident,  but  might  have  been  avoided  by 
jjroper  efforts  on  the  ])art  of  the  carrier.     For  such  damage  he  is 


caerier's  liability.  155 

undoubtedly  responsible,  and  he  cannot  charge  it  to  the  inevitable 
accident.  It  is  the  result  of  his  own  negligence.  In  the  case  of 
Charleston  and  Col,  S.  B.  v.  Bason,  1  Harper,  262,  a  boat  grounded 
on  an  inland  passage  to  Charleston,  from  a  reflux  of  the  tide, 
and  fell  over,  when  the  bilge-water  ran  into  the  cabin  and  injured 
a  box  of  books  belonging  to  the  plaintiff.  Richardson,  J.,  said: 
"Admitting  the  grounding  to  have  been  accidental  and  unavoidable, 
and  the  carrier  in  no  fault,  yet  the  moment  the  boat  heeled,  the 
bilge-water  was  returned  towards  the  stern;  and  this  the  carrier 
was  bound  to  know,  and  remove  the  cargo  there  stored.  The  books 
in  question,  being  in  the  cabin,  could  easily  have  been  removed. 
The  carrier  is  liable  for  bad  storage  and  default  in  good  keeping. 
The  injury  therefore  was  through  negligence,  and  does  not  come 
within  the  exception  of  the  bill  of  lading." 

The  true  question  then,  in  such  cases,  must  be  —  is  the  damage 
the  result  of  the  accident ;  or  is  it,  or  any  portion  of  it,  attributable 
to  the  negligence  of  the  carrier?  The  defendant  was  certainly  not 
responsible  for  the  damage  the  wheat  received  by  the  storm;  bat  if, 
after  the  storm  passed,  the  wheat,  or  any  portion  of  it,  was  suffered 
to  remain  in  the  water,  which  could  have  been  baled  out,  or  when 
it  could  have  been  removed  to  another  part  of  the  boat,  without 
interference  with  the  rights  of  other  shippers  or  passengers,  a  loss 
happening  for  want  of  such  removal  of  the  wheat  or  the  water  is 
properly  chargeable  to  the  boat.  The  loss  thus  produced  is  not  the 
effect  of  the  accident,  but  is  attributable  to  the  negligence  of  the 
officers  and  crew  of  the  boat.  It  is  the  duty  of  the  carrier  to  take 
all  possible  care  of  the  freight  intrusted  to  him.  His  employment 
is  to  transport  goods  and  passengers  with  speed  and  care.  But  to 
impose  upon  him  the  burden  of  repairing  the  effects  of  accidents  for 
which  he  is  not  responsible,  is  requiring  of  him  a  task  he  has  never 
undertaken,  and  for  which,  we  may  presume,  he  has  no  special 
skill.  The  instruction  given  by  the  Court  of  Common  Pleas 
imposed  upon  the  carrier  this  additional  task.  The  officers  of  the 
•'Lynx"  were  required  to  dri/  the  wheat  which  had  been  wet  by  a 
storm,  and  to  use  all  possible  means  to  effect  this  object.  It  will 
be  seen  at  once  that  the  task  of  drying  several  thousand  bushels  of 
wheat  is  not  a  light  one,  and  if  all  the  means  which  skill  and 
science  and  labor  can  bestow  are  to  be  used  in  this  process;  the 
business  of  the  common  carrier  is  lost  sight  of. 

Is  the  master  of  the  boat  to  withdraw  his  crew  from  their  ordinary 
employments  in  the  prosecution  of  the  voyage,  and  employ  them  in 
this  onerous  and  tedious  business,  totally  foreign  to  his  general 
duty,  and  utterly  destructive  it  may  be  of  the  interests  of  the 
owners,  insurers,  and  other  shippers?  Would  it  not  be  most  bene- 
ficial to  all  parties  concerned,  that  he  should  proceed  to  his  port  of 
destination  with  all  possible  despatch,  where  the  owners  or  con- 
signees of  the  wheat  could  take  the  necessary  measures  for  restor- 


156  CARRIERS    OF   GOODS. 

ing  it  to  a  sound  condition?  In  the  case  we  have  cited  from  South 
Carolina,  it  was  not  hinted  in  the  opinion  that  it  was  any  part  of 
the  duty  of  the  master  of  the  steamboat  to  dry  the  books  after  they 
had  been  wet  by  the  bilge- water;  but  he  was  held  responsible  for 
not  removing  them  before  the  water  reached  them.  Suppose  the 
case  of  a  large  assortlnent  of  dry  goods  shipjDed  on  one  of  our  west- 
ern boats.  The  boat  is  snagged,  and  the  goods  are  damaged  by  the 
water.  Shall  the  master  and  crew  be  obliged  to  open  tlie  boxes, 
unfold  the  packages  and  pieces,  and  by  means  of  artificial  or  natural 
heat  undertake  the  tedious  process  of  drying  the  goods? 

The  case  of  Bird  v.  Cromwell,  1  Mo.  R.  81,  certainly  goes  very 
far  to  sustain  the  instruction  given  in  this  case.  That  case  was 
decided  in  1821,  and  the  accident  which  gave  rise  to  the  suit 
occurred  on  a  barge  navigating  the  Mississippi  between  New  Orleans 
and  St.  Louis.  A  quantity  of  cotfee,  how  much  is  not  stated,  was 
shipped  on  this  barge  at  New  Orleans,  and  became  wet  and  damaged 
by  an  inevitable  accident.  The  court  held  that  it  was  the  duty  of 
the  master  of  the  barge  to  use  all  possible  exertions  to  dry  the 
coffee.  It  is  impossible  to  conjecture,  from  the  opinion,  what 
character  and  degree  of  exertions  the  court  had  in  view  in  giving 
this  instruction.  The  facts  of  the  case  may  have  authorized  a  ver- 
dict against  the  boat  or  her  owners,  but  the  instruction  api>roved 
by  the  court  in  its  unqualified  sense  was  certainly  imposing  an 
extraordinary  duty  upon  common  carriers.  Much  consideration  is 
no  doubt  due  to  the  character  of  the  navigation  in  which  the  carrier 
is  engaged.  Whilst  the  general  principles  which  govern  the  con- 
duct of  common  carriers  in  ocean  navigation  have  been  applied  to 
the  navigation  of  our  western  waters,  there  are  cases  and  circum- 
stances in  which  the  duties  of  these  respective  classes  of  carriers 
obviously  vary.  So,  also,  the  navigation  of  the  Mississippi  by  keels 
and  barges  in  1820  may  have  been  attended  witli  dilferent  duties 
from  those  devolving  on  the  owners  and  officers  of  steamboats  at  the 
jjresent  day.  When  it  required  from  six  weeks  to  two  months  to 
make  the  voyage  from  New  Orleans  to  St.  Louis,  the  officers  and 
crew  of  the  barge  tlius  slowly  impelled  by  human  power,  and  having 
no  intermediate  points  of  trade,  may  have  been  subjected  by  the 
custom  of  the  trade  to  a  greater  variety  of  duties  than  would  now 
be  held  to  devolve  upon  the  class  of  navigators  which  has  succeeded 
them.  The  abstract  principle,  however,  avowed  in  this  opinion  of 
liird  V.  Cromwell,  we  cannot  consider  as  api)licable  to  tlic  oircum- 
stances  of  tlie  jjresent  case. 

The  other  judges  concurring,   the  judgment  is  reversed,  and  tho 
cauHc  remanded. 


carrier's  liability,  157 

BEAKD   V.    ILLINOIS   CENTKAL   R.    CO. 
79  Iowa,  578.     1890. 

Action  to  recover  damages  for  injury  sustained  by  plaintiffs  from 
the  negligence  of  defendant  in  transporting  a  car-load  of  butter, 
which  it  had  received  from  an  intermediate  carrier,  whereby  the 
butter  was  greatly  injured.  There  was  a  verdict  and  judgment  for 
plaintiff.     Defendant  ajDpeals. 

Beck,  J.  I.  The  plaintiff  delivered  to  the  Burlington,  Cedar 
Rapids  &  Northern  Railway  Company,  at  West  Union,  in  two 
consignments,  a  large  quantity  of  butter  for  transportation  to  New 
Orleans.  The  facts  as  to  both  separate  consignments  are  identical. 
In  the  further  statement  of  facts  they  will  be  referred  to  as  but  one 
transaction.  The  butter  was  put  in  refrigerator  cars  by  the  com- 
pa,ny  first  receiving  it  and  was  transported  therein  over  connecting 
roads  to  St.  Louis,  where  it  was  transferred  by  drays  across  the 
river,  and  delivered  to  the  St.  Louis,  Alton  &  Terre  Haute  Rail- 
way Company,  known  as  the  "Cairo  Short  Line,"  and  put  in  a 
common  box  car,  and  a  lined  fruit  car,  each  of  which  was  sealed,  as 
is  usually  done,  and  sent  on  the  same  day  to  Duquoin,  Illinois,  and 
delivered  to  defendant,  which  transported  it  to  New  Orleans,  in  the 
same  cars.  The  butter  was  not  examined  by  defendant,  and  no 
attempt  was  made  to  ascertain  its  condition,  on  the  probability  that 
it  could  or  would  not  be  transported  in  the  cars,  without  injury,  to 
New  Orleans.  The  Cairo  Short  Line  Company  billed  the  butter  to 
New  Orleans  at  a  rate  of  freight  charges  for  common  cars.  It 
appears  that  the  consignment  took  the  usual  course  of  transaction 
between  defendant  and  the  Cairo  Short  Line,  at  Duquoin.  It  is  not 
shown  that  plaintiff,  or  the  initial  or  connecting  carrier,  made  any 
demand  of  defendant  or  the  Cairo  Short  Line  Company  for  a  refrig- 
erator car,  or  for  the  protection  of  the  butter  from  the  effects  of  heat 
by  the  use  of  ice  in  the  common  car  in  which  it  was  transported, 
and  it  is  not  shown  that  plaintiff,  or  the  initial  carrier,  or  the  con- 
necting companies  to  St.  Louis,  had  any  notice  or  information  in 
any  way,  directly  or  indirectly,  of  the  shipment  of  the  butter  with- 
out protection  from  the  effects  of  the  heat,  nor  did  they  have  any 
notice  or  information  of  the  practice  and  course  of  business  adopted 
by  defendant  and  the  Cairo  Short  Line  at  Duquoin.  We  are  required 
to  determine  whether,  under  the  law  upon  these  facts,  the  defendant 
is  liable.  The  discussion  of  this  question  will  dispose  of  certain 
objections  made  by  the  counsel  of  defendant  to  the  rulings  of  the 
court  below  upon  instructions  and  admissions  of  evidence. 

II.     We  will  proceed  to  inquire  as  to  the  duty  of  defendant  upon 
receiving  the  butter  in  a  car  from  the  Cairo  Short  Line  for  trans- 


158  CARRIERS   OF   GOODS. 

portation  to  New  Orleans,  without  cUrectious  or  instructions  as  to 
the  character  of  the  ear  in  which  it  shoukl  be  carried.  A  carrierls 
duty  is  not  limited  to  the  transportation  of  goods  delivered  for  car- 
riage. He  must  exercise  such  diligence  as  is  req^uired  by  law  to 
protect  the  goods  from  destruction  and  injury  resulting  from  condi- 
tions which,  in  the  exercise  of  due  care,  may  be  averted  or  counter- 
acted. He  must  guard  the  goods  from  destruction  or  injury  by 
the  elements;  from  the  effects  of  delays;  indeed,  from  every  source 
of  injury  which  he  may  avert,  and  which,  in  the  exercise  of  care 
and  ordinary  intelligence,  may  be  known  or  anticipated.  Unknown 
causes,  or  those  which  are  inherent  in  the  nature  of  the  goods,  and 
cannot  be,  in  the  exercise  of  diligence,  averted,  will  not  render  the 
carrier  liable.  The  nature  of  the  goods  must  be  considered  in  deter- 
mining the  carrier's  duty.  Some  metals  ma}-  be  transported  in  open 
cars.  Many  articles  of  commerce,  when  transported,  must  be  pro- 
tected from  rain,  sunshine,  and  heat,  and  must  have  cars  fitted  for 
their  safe  transportation.  Live  animals  must  have  food  and  Avater, 
when  the  distance  of  transportation  demands  it.  Fruit,  and  some 
other  perishable  articles,  must  be  carried  with  expedition  and  pro- 
tection from  frost.  So  the  carrier  must  attend  to  the  character  of 
the  goods  he  transports.  He  is  informed  thereof  byjnspec^on_of 
the  freight-bills,  or  by  other  papers  accompanying  the  shipment. 

In  the  case  before  us  the  marks  on  the  packages  and  the  way-bill 
disclosed  that  the  subject  of  shipment  was  butter.  The  employees 
of  defendant  were  endowed  with  intelligence  which  taught  them 
that  the  season  was  summer,  when  warm  weather  prevailed;  that 
butter,  in  common  cars,  would  be  greatly  injured  by  the  ordinary 
heat  of  the  climate;  and  that  the  butter,  as  it  approached  its  des- 
tination, would  be  subject,  by  reason  of  the  change  of  latitude,  to 
greatly  increased  heat  from  the  weatlier.  All  these  tilings  are 
familiarly  known  to  all  men.  Surely,  the  law  will  presume  that 
defendant's  emjjloyees  had  full  knowledge  thereof.  The  law  re- 
quired the  defendant,  having  received  the  i)erishable  cargo  involved 
in  this  suit,  to  exercise  the  care  and  diligence  necessary  to  i)roteet 
it;  and,  if  improved  cars  for  the  transportation  of  articles  of  com- 
merce liable  to  injury  from  heat  were  in  use,  it  was  defendant's  duty 
to  use  such  cars  in  carrying  the  butter.  These  views  are  supported 
by  the  following,  among  other  cases:  Hewett  v.  Kailway  Co.,  63 
Iowa,  Gil;  Sager  V.  Kailway  Co.,  31  Me.  228;  Hawkins  r.  Ifailway 
Co.,  17  Mich.  G2;  IS  Mich.  427;  Railway  Co.  v.  Tratt,  22  Wall.  123; 
Wing  V.  Railway  Co.,  1  Hilt.  241;  Merchants'  Dispatch  &  Trans. 
Co.  V.  Corn  forth,  3  Colo.  2S0.  As  to  the  duty  of  defendant  tn  use 
cars  80  constructed  and  used  as  to  avoid  injury  from  licat,  see  Hutch. 
Carr.,  sec.  294;  Rosoowit/.  v.  Express  Co.,  '.»;;  111.  .".25;  Steinway  r. 
Railway  Co.,  43  N.  Y.  123. 

III.  But  it  is  said:  (1)  Th.at  defendant  did  not  have  refrigerator 
catH  whicli   it  couM   h:ivc   used   on   the  day  it  received  the  Imtter; 


carrier's  liability.  159 

(2)  that  the  cars  were  sealed;  (3)  that  it  was  accustomed  to  haul 
the  cars  received  from  the  Cairo  Short  Line  without  changing  the 
cargo.  We  may  here  assume  that  defendant  will  be  excused  from 
using  refrigerator  cars.  But  it  is  shown  that  the  butter  could  have 
been  carried  safely  by  the  use  of  ice  in  the  box  cars.  It  was  defend- 
ant's duty  to  use  it.  But,  having  accepted  the  butter  for  transporta- 
tion, defendant  cannot  escape  liability  for  not  safely  transporting  it, 
on  the  ground  that  it  did  not  have  cars  sufficient  for  that  purpose. 
Railway  Co.  v.  Swift,  12  Wall.  262;  Helliwell  v.  Railway  Co.,  7 
Fed.  Rep.  76;  Paramore  ^•.  Railway  Co.,  53  Ga.  385.  The  sealing 
of  the  car  was  not  to  protect  it  from  defendant,  the  carrier  having 
it  under  control.  Surely,  if  it  was  necessary  for  the  protection  of 
the  goods,  defendant Jiad  full  power  to  enter  the  car,  and  failure 
to  exercise/the  power  was  negligence.  Dixon  v.  Railway  Co. ,  7-4 
N.  C.  538.  The  custom  of  the  defendant  and  Cairo  Short  Line  cannot 
be  invoked  to  protect  one  or  both  from  negligence  causing  destruc- 
tion to  goods  transported  by  them.  A  custom  to  take  cars  without 
changing  the  goods  in  them,  when  their  safety  demanded  it,  would 
be  a  custom  based  upon  negligence,  and  cannot  be  regarded  or  , 
enforced.  Hamilton  v.  Railway  Co.,  36  Iowa,  31;  Allen  v.  Railway 
Co.,  64  Iowa,  95. 

IV.  It  is  said  that  the  rate  of  charges,  as  shown  by  the  way-bill, 
was  for  common  cars,  and  the  defendant,  therefore,  undertook  to 
furnish  no  other  kind.  If  the  freight  charges  fixed  in  the  way-bill 
do  not  express  a  contract  that  the  butter  may  be  transported  so  as 
to  destroy  its  value,  and  that  the  carrier  is  excused  from  the  exer- 
cise of  the  care  required  of  him  by  law,  we  think  the  freight  charges 
in  no  case  will  limit  the  care  to  be  exercised  by  the  carrier,  and 
restrict  his  liability.  The  defendant  was  not  restricted,  by  the  rate  ; 
of  freight  charges  named  in  the  way-bill,  from  claiming  and  enfor- 
cing the  payment  of  a  just  compensation  for  charges  incurred  on  I 
account  of  outlays  made  in  order  to  safely  transport  the  goods. 
Sumner  v.  Railway  Association,  7  Baxt.  345.  Many  of  the  rulings 
of  the  District  Court  upon  the  admission  of  evidence  and  instruc- 
tions objected  to  by  defendant,  are  in  accord  with  the  views  we 
have  expressed. 

V.  Evidence  was  admitted,  against  defendant's  objection,  tend- 
ing to  show  that  a  custom  prevailed  among  carriers  by  railroads  to 
put  butter  into  cold  storage,  when  refrigerator  cars  were  not  ready 
to  receive  it.  This  evidence  was  objected  to,  on  the  ground  that  the 
petition  contained  no  allegation  of  negligence  by  reason  of  the 
failure  of  defendant  to  put  the  butter  into  cold  storage.  But 
the  petition  does  charge  negligence  on  the  part  of  defendant  in  not 
taking  proper  precautions  to  preserve  the  butter.  The  evidence 
tends  to  show  what  precautions  ought  to  have  been  taken  in  this  I 
case.  Besides,  the  evidence  serves  to  show  that  defendant's  excuse 
for  sending  the  butter  in  the  common  car,  and  for  not  retaining  it 


1(50  CARRIERS   OF   GOODS. 

until  a  refrigerator  car  ou  defeudaut's  road  came  along,  is  not  suffi- 
cient. It  is  shown  that  such  a  car  was  run  on  defendant's  trains 
on  two  or  three  days  each  week. 

VI.  The  Superior  Court,  in  the  seventh  instruction  given,  directed 
the  jury  that  they  could  infer  that  the  butter  was  in  good  order  when 
received  by  defendant,  from  the  fact  that  it  was  shipped  in  good 
condition,  in  a  refrigerator  car,  for  St.  Louis.  Of  this  instruction 
defendant  complains.  It  is  correct.  The  presumption  arises  that 
goods  shipped  in  good  order  continue  in  that  condition  when  in  tlie 
hands  of  a  conuecting  carrier.  The  burden  rests  on  such  carrier  to 
show  that  they  were  not  in  good  condition  when  received  by  him. 
Hutch,  on  Carr.,  sec.  761;  Shriver  v.  Kailway  Co.,  24  ]\linn.  oOG 
[414];  Leo  v.  Railway  Co.,  30  Minn.  438;  Laughlin  y.  Railway  Co., 
28  Wis.  204;  Dixon  v.  Railway  Co..  74  N.  C.  538;  Paramore  v. 
Railway  Co.,  53  Ga.  385. 

VII.  The  defendant,  in  its  answer,  set  up  as  a  defence  that 
plaintiffs  had  fully  compromised  this  claim  for  loss  of  the  butter 
with  ]. receding  connecting  carriers,  transporting  the  butter  to 
defendant.  The  court  withdrew  the  issue  upon  this  defence  from 
the  jury,  on  the  ground  that  there  was  no  evidence  supporting  the 
defence.  Of  this  ruling  the  defendant  now  complains.  The  court, 
we  think,  ruled  rightly.  The  evidence  totally  fails  to  show  a  settle- 
ment. The  most  that  could  be  said  is  that  the  evidence  shows 
propositions  for  settlements,  and  agreements  to  settle.  But  it  is 
not  shown,  as  is  alleged  in  defendant's  answer,  that  tliere  was  in 
fact  a  settlement  and  payment  thereon,  and  a  discharge  of  the  claim. 
The  action  of  the  court  in  this  regard  is  correct.  The  foregoing 
discussion  disposes  of  all  the  questions  requiring  consideration  in 
this  opinion.     The  judgment  of  the  District  Court  is 

Affirmed. 


5.    LIMITATION   OF   LIAP.ILITY. 

a.     What  vnluh 

Gir.r.OX   V.    I'AYNTON. 

King's  Bench.     4  I'.urr.  229s.     17G9. 

This  was  an  action  against  the  I'.irmingliam  stagecoacliman,  for 
.tliMi  in  money  sent  from  iJirmingliam  t(.  London  by  his  coaoli,  and 
lost.  It  was  hid  in  hay,  in  an  ohl  nail-bag.  Tlie  bag  and  tin"  hay 
arrived  safe;  but  the  money  was  gon(\  Tlie  coachman  had  inserted 
an  ailvertisement  in  a  iSirnungliam  newspaper,  with  a  nota  heve, 
"that  the  coachman  would  not  be  answerable  for  money  or  jewels 


LIMITATION   OF   LIABILITY.  161 

or  other  valuable  goods,  unless  he  had  notice  that  it  was  money  or 
jewels  or  valuable  goods  that  was  delivered  to  him  to  be  carried." 
He  had  also  distributed  liand-bills  of  the  same  import.  It  was 
notorious  in  that  country  that  the  price  of  carrying  money  from 
Birmingham  to  London  was  threepence  in  the  pound.  The  plain- 
tiff was  a  dealer  at  Birmingham,  and  had  frequently  sent  goods 
from  thence.  It  was  proved  that  he  had  been  used,  for  a  year  and 
a  half,  to  read  the  newspaper  in  wliich  this  advertisement  was  pub- 
lished; though  it  could  not  be  proved  that  he  had  ever  actually  read 
or  seen  the  individual  paper  wherein  it  was  inserted.  A  letter  of 
the  plaintiff's  was  also  produced,  from  whence  it  manifestly  appeared 
that  he  knew  the  course  of  this  trade,  and  that  money  was  not  car- 
ried from  that  place  to  London  at  the  common  and  ordinary  price  of 
the  carriage  of  other  goods.  And  it  likewise  appeared  from  this 
letter  that  he  was  conscious  that  he  could  not  recover,  by  reason  of 
this  concealment.     The  jury  found  a  verdict  for  the  defendant. 

Mr.  Wallace,  on  behalf  of  the  plaintiff,  moved  (on  Thursday,  26th 
January,  1769)  for  a  new  trial,  and  obtained  a  rule  to  show  cause : 
which  rule  he  now  enforced,  and  was  supported  by  Mr.  Hotham. 
They  insisted  that  the  coachman  was  answerable,  though  he  did  not 
know  that  it  was  money.  A  carrier  is  always  answerable,  unless 
he  accepts  the  goods  specially ;  but  the  circumstances  of  this  case, 
they  said,  do  not  amount  to  a  special  acceptance.  He  made  no 
inquiry  or  objection;  therefore  he  is  answerable.  It  is  incumbent 
upon  him  to  see  that  he  is  not  cheated.  He  is  bound  to  receive  the 
goods,  and  must  run  the  risk.  If  the  goods  are  lost  by  negligence, 
or  even  if  he  is  robbed,  he  is  liable  to  answer  for  them.  If  the 
trader  deceives  him,  he  may  have  an  action  against  the  trader,  for 
this  deceit.  In  proof  of  their  arguments  and  assertions,  they  cited 
the  following  cases. 

Aleyn,  93;  Kenrig  v.  Eggleston,  1  Ventr.  238,  a  like  case  cited 
by  Hale,  in  delivering  the  reasons  of  the  resolution  in  the  case  of 
Morse  v.  Slue  [114];  Coggs  v.  Barnard,  in  1  Salk.  26;  3  Salk.  11, 
268,  and  Holt,  13,  131,  528;  Carthew,  485.  Sir  Joseph  Tyly  et  at. 
V.  Morrice,  2  Shower,  81;  Bastard  v.  Bastard,  1  Stra.,  145  [88]; 
Titchburne  v.  White,  at  Guildhall;  where  Lord  Chief  Justice  King 
held  "  that  if  a  box  is  delivered  generally  to  a  carrier,  and  he  accepts 
it,  he  is  answerable,  though  the  party  did  not  tell  him  there  is 
money  in  it." 

Mr.  Dunni7ig  (Solicitor  General)  and  Mr.  Mansfield  argued  on 
behalf  of  the  defendant,  against  a  new  trial.  They  treated  this 
conduct  of  the  plaintiff  as  a  fraud  and  deception  upon  the  defendant. 
A  carrier  may  accept  specially :  this  man  has  done  so.  The  adver- 
tisement is  explicit  against  being  answerable  for  money,  without 
notice.  This  money  was  never  fairly  and  properly  intrusted  to  the 
defendant;  and  a  carrier  shall  not  be  liable,  where  he  is  imposed 
upon;  which  is  the  present  case.     Lord  Mansfield  distinguished 

11 


162  CARRIEHS   OF   GOODS. 

between  the  case  of  a  common  carrier  and  that  of  a  bailee.  The 
latter  is  oulj-  obliged  to  keep  the  goods  with  as  much  diligence  and 
caution  as  he  would  keep  his  own;  but  a  common  carrier,  in  respect 
of  the  premium  he  is  to  receive,  runs  the  risk  of  them,  and  must 
make  good  the  loss,  though  it  happen  without  any  fault  in  him;  the 
reward  making  him  answerable  for  their  safe  delivery. 

This  action  is  brought  against  the  defendant  upon  the  foot  of 
being  a  common  carrier.  His  warranty  and  insurance  is  in  respect 
of  the  reward  he  is  to  receive;  and  the  reward  ought  to  be  projior- 
tionable  to  the  risk.  If  he  makes  a  greater  warranty  and  insurance, 
he  will  take  greater  care,  use  more  caution,  and  be  at  the  expense  of 
more  guards  or  other  methods  of  security ;  and  therefore  he  ought, 
in  reason  and  justice,  to  have  a  greater  reward.  Consequently,  if 
the  owner  of  the  goods  has  been  guilty  of  a  fraud  upon  the  carrier, 
such  fraud  ought  to  excuse  the  carrier.  And  here  the  owner  was 
guilty  of  a  fraud  upon  him :  the  proof  of  it  is  over  abundant.  The 
plaintiff  is  a  dealer  at  Birmingham.  The  price  of  the  carriage  of 
money  from  thence  is  notorious  in  that  place:  it  is  the  rule  of  every 
carrier  there.  It  is  fairly  presumed  that  a  man  conversant  in  a 
trade  knows  the  terms  of  it.  Therefore  the  jury  were  in  the  right, 
in  presuming  that  this  man  knew  it.  The  advertisement  and  hand- 
bills were  circumstances  proper  to  be  left  to  the  jury.  The  ])lain- 
tilfs  having  l>een  used,  for  a  year  and  a  half,  to  read  tliis  newspaper 
is  a  strong  circumstance  for  the  jury  to  ground  a  presumption  that 
he  knew  of  the  advertisement.  Then  his  own  letter  strongly  inters 
his  consciousness  of  his  own  fraud,  and  that  he  meant  to  cheat  the 
carrier  of  his  hire.  Therefore  I  entirely  agree  with  the  jury  in 
their  verdict.  And  if  he  has  been  guilty  of  a  fraud,  how  can  he 
recover?     Er  dnlo  vuiln  non  oritur  actio. 

As  to  cases  cited  —  that  of  Kenrig  v.  Eggleston,  in  Akyn,  03,  was 

£lf)0,  in  a  box  delivered  to  a  carrier;  the  jjlaintiff  telling  him  only 

"that  there  was  a  lK)ok  and  tol)acco  in  the  box;"  and  lloll  directed 

that  although  the  plaintiff  did  tell  him  of  some  tilings  in  the  box 

only,  and  not  of  the  money,  yet  he  must  answer  for  it;  for  he  need 

not  tell  the  carrier  all  the  particulars  in  the  box;  but  it  must  come 

on  the  carrier's  part  to  make  sjiccial  acceptance,     lint  in  respect  of 

!ided  cheat  to  the  carrier,  he  told  the  jury  tliey  might  con- 

:m  in  damages:  notwithstanding  whicli,  the  jury  gave  A,''.)7 

against  the  carrier,  for  the  money  only  (the  other  things  being  of 

no  considerable  value),  abating  .tl.'i  only  for  carriage.      Qvod  durum 

riitfhfitur  rirnimittdntlhus.      Now  I  own   that  I  should  have  tho\ig]»t 

'     hould  have  agreeil  in  opinion  witli  the  rirrmn^ 

iiis  to  havcl)een  also  the  opinion  of  tlie  report«'r. 

80  in  the  case  cited  by  Hale,  in  1  Ventris,  2P.8,  of  a  box  brought. 
to  n  — -•--  —  *'  ^reat  sum  of  money  in  it;  and  upon  the  carrier's 
dci.  ,  iier  "what  was  in  it,'*  lie  answered  "th.it  it  was 

filled  wilh  bilkM  auil  such  like  goods  of  mean  v:ilue;''  upon  whirli, 


LIMITATION   OF   LIABILITY.  163 

tlie  carrier  took  it,  and  was  robbed;  and  resolved  " that  he  was 
liable."  But  (says  the  ease)  if  the  carrier  had  told  the  owner  ''that 
it  was  a  dangerous  time ;  and  if  there  were  money  in  it,  he  durst  not 
take  charge  of  it;  "  and  the  owner  had  answered  as  before;  this 
matter  would  have  excused  the  carrier.  In  this  case  also,  I  own 
that  I  should  have  thought  the  carrier  excused,  although  he  had  not 
expressly  proposed  a  caution  against  being  answerable  for  money: 
for  it  was  artfully  concealed  from  him  that  there  was  any  money 
in  the  box. 

The  case  of  Sir  Joseph  Tyly  and  Others  against  Morrice,  in 
Carthew,  485,  was  determined  upon  the  true  principles  —  "that  the 
carrier  was  liable  only  for  what  he  was  fairly  told  of."  Two  bags 
were  delivered  to  him,  sealed  up,  said  to  contain  £200,  and  a 
receipt  taken  accordingly,  with  a  promise  "to  deliver  them  to  T. 
Davis;  he  to  pay  10s.  per  cent  for  carriage  and  risk."  The  carrier 
was  robbed.  The  Chief  Justice  was  of  opinion  that  he  should  answer 
for  no  more  than  £200,  "because  there  was  a  particular  undertaking 
by  the  carrier  for  the  carriage  of  £200  only ;  and  his  reward  was  to 
extend  no  further  than  that  sum ;  and  't  is  the  reward  that  makes  the 
carrier  answerable :  and  since  the  plaintiffs  had  taken  this  course  to 
defraud  the  carrier  of  his  reward,  they  had  thereby  barred  them- 
selves of  that  remedy  which  is  founded  only  on  the  reward."  So 
the  jury  were  (in  that  case)  directed  to  find  for  the  defendant. 

For  these  reasons,  his  Lordship  was  of  opinion,  in  the  present 
case,  that  the  plaintilf  ought  not  to  recover. 

Mr.  Justice  Yates  held  that  a  carrier  may  make  a  special  accept- 
ance ;  and  that  this  was  a  special  acceptance. 

By  the  general  custom  of  the  realm,  a  common  carrier  insures  the 
goods,  at  all  events;  and  it  is  right  and  reasonable  that  he  should 
do  so;  but  he  may  make  a  special  contract,  or  he  may  refuse  to  con- 
tract, in  extraordinary  cases,  but  upon  extraordinary  terms.  And 
certainly,  the  party  undertaking  ought  to  be  apprised  what  it  is  that 
he  undertakes ;  and  then  he  will  or  at  least  may  take  proper  care. 
But  he  ought  not  to  be  answerable  where  he  is  deceived.  Here  he 
was  deceived:  the  money  was  hid  in  an  old  nail-bag;  and  it  was 
concealed  from  him  that  it  was  money.  The  plaintiff's  own  letter 
shows  that  he  knew  the  course  of  this  trade,  and  that  money  was 
not  in  that  place  carried  at  the  common  ordinary  price  of  carr5^ing 
other  things.  And  if  he  was  apprised  of  the  defendant's  advertise- 
ment, that  might  be  equivalent  to  personal  communication  of  the 
carrier's  refusal  to  be  answerable  for  money  not  notified  to  him ;  and 
this  was  left  to  the  jury. 

Mr.  Justice  Astox,  who  tried  the  cause,  said  he  had  no  doubt 
about  the  justice  of  the  case:  his  difficulty  had  only  arisen  from  the 
cases  and  authorities  which  had  been  now  mentioned;  which  put 
him  upon  more  caution  in  admitting  the  evidence.  But  it  appeared 
to  be  notorious  in  the  country  where  this  transaction  happened,  that 


1C4  CARRIERS   OF   GOODS. 

the  price  of  carrying  mone}'  from  thence  to  London  was  tlireepence 
in  the  pound;  and  it  manifestly  appeared  that  this  was  money  sent 
under  a  concealment  of  its  being  money.  The  true  principle  of 
carrier's  being  answerable  is  the  reward.  And  a  higher  price  ought, 
in  conscience,  to  be  paid  him  for  the  insurance  of  money,  jewels, 
ami  valuable  things,  than  for  insuring  common  goods  of  small  value. 
And  here,  though  it  was  not  directly  and  strictly  brought  home  to 
the  plaintiff  that  he  had  a  clear  certain  knowledge  of  the  defendant's 
advertisements  and  hand-bills,  yet  it  was  highly  probable  that  he 
must  have  known  of  tliem;  and  his  own  letter  sliowed  his  being 
conscious  that  he  could  not  recover,  by  reason  of  tlie  concealment. 
Therefore  I  think  the  verdict  against  him  ought  to  stand. 
Air.  Justice  Willis  concurred  in  the  same  opinion. 

Per  Cur',  unanlnwusly  —  Rule  discharged. 


HARRIS   V.    PACKWOOD. 

Commou  Pleas.     3  Taunt.  2t;4.     1810. 

This  was  an  action  brought  against  the  defendants,  who  were 
common  carriers,  to  recover  the  value  of  forty-six  }touiids  of  silk, 
delivered  to  them  in  London,  to  be  carried  from  thence  by  their 
wagon  to  Coventry,  and  never  received  there  by  the  consignees. 
Upon  the  trial,  at  Guildhall,  at  the  sittings  after  the  last  Trinity 
Term,  before  Lawkk.vck,  J.,  it  was  jiroved  that  the  goods  were 
delivered  and  booked  at  the  warehouse  in  London,  from  whence  the 
wagon  set  out,  and  that  they  were  seen  safe  at  Market  Street,  in 
the  road  to  Coventry,  but  that  they  never  arrived  at  Coventry ;  that 
their  value  was  .t12G;  that  the  wagon  by  which  tlu'y  were  carried 
formerly  was  built  with  bows,  and  wlu-n  the  bows  were  closed,  it 
was  very  difficult  to  take  a  large  parcel  out  of  the  loaded  wagon,  but 
that  for  some  time  past  these  bows  had  been  taken  oft'  and  discon- 
tinued, in  order  to  make  it  more  easy  to  load  the  wagon,  and  to 
enable  it  to  receive  a  larger  load,  but  that  this  alteration  rendered 
it  an  ea.sier  matter  to  take  out  a  parcel.  The  wag(»n  had  also  for- 
merly been  guarded,  but  there  had  been  no  guard  to  attend  it  for 
the  last  two  years.  The  wagf)n  us\ially  arrived  at  Towcester  at  two 
o'clock  in  the  morning,  and  remained  there  until  twelve  at  noon,  in 
a  yard,  under  the  wall.  It  was  the  wagoner's  ])ractice  on  his  arrival 
there  io  call  up  the  innkeej)er,  and  to  go  to  bed  himself.  The 
defendant  relied  upon  his  having  published  an  advertisement,  in 
November,  1808,  wliich  he  had  sent  roiind  to  all  the  silk-traders  who 
then  UHcd  his  wagon,  and  amongst  others  to  tlie  ])laintifr.  announ- 
cing that  he  would  not  be  accountable  for  any  i)ackage  wliatsocver, 


LIMITATION   OF   LIABILITY.  165 

above  the  value  of  £20,  unless  entered,  and  an  insurance  paid,  over 
and  above  the  price  charged  for  carriage,  according  to  their  value, 
and  that  no  such  insurance  had  been  paid  in  this  case;  the  plaintiff 
answered  this  by  proving  a  former  advertisement  circulated  by  the 
defendant  containing  special  terms  for  the  carriage  of  silk,  viz. ,  9s. 
4(Z.  per  cwt. ,  while  for  ordinary  bulky  articles  he  charged  65.  only, 
and  he  contended  that  the  higher  price  of  9s.  4d.  per  cwt.  included 
the  premium  of  insurance.  It  was  admitted  that  if  the  goods  had 
been  delivered,  the  plaintiff  would  have  paid  for  them  at  the  rate  of 
9s.  Ad.  per  cwt.  Some  other  persons  paid  a  halfpenny  per  lb.  of 
silk,  besides  the  price  of  carriage,  for  insurance. 

ShejjJierd,  Sergt. ,  for  the  defendant,  contended  that  the  claim  for 
insurance  meant  the  same  thing  as  if  the  defendants  had  said,  if 
goods  are  of  a  certain  value,  we  must  receive  a  halfpenny  more  in 
every  pound  of  their  value  for  carrying  them;  and  as  the  plaintiff 
had  not  engaged  to  pay  that,  he  could  not  make  the  defendant  in 
any  wise  responsible  for  the  loss. 

Lawrence,  J.,  thought,  that  as  a  specific  sum  was  paid  for  the 
carriage,  and  something  was  to  be  paid  over  and  above  the  carriage 
for  insurance,  the  word  insurance  must  be  applied  to  those  risks 
against  which  a  carrier  is  bound  by  law  to  insure,  qua  insurer,  as 
fire,  robbers,  armed  force,  and  the  like,  and  that  the  sum  required 
for  insurance  must  be  received  as  the  price  of  guarding  against  those 
accidents ;  but  that  without  the  payment  of  any  such  insurance,  he 
was  still  bound  to  guard  against  loss  by  exposure,  carelessness, 
driving  into  the  river,  or  the  like;  otherwise  a  carrier  might  receive 
the  price  of  carrying  the  goods,  and  nevertheless  be  as  careless  as 
he  pleased :  in  this  case  it  did  not  appear  that  the  parcel  was  not 
lost  through  mere  negligence ;  there  was  good  reason  why  a  carrier 
should  be  made  acquainted  with  the  value  of  the  goods  committed 
to  him,  that  he  might  take  the  greater  precaution  against  fire,  or 
take  greater  force  to  resist  felons;  but  here  the  defendant  was 
satisfied  with  the  price  of  the  carriage,  and  undertook  to  carry  for 
that  price,  but  claimed  something  further  for  insurance :  what  does 
that  mean?  surely  not  for  insurance  against  his  own  default  of  duty! 
It  was  incumbent,  therefore,  on  the  defendant  to  show  that  he  took 
reasonable  care  of  them,  not  on  the  plaintiff  to  prove  a  negative,  and 
that  the  defendant  took  no  care  of  them.  The  jury,  under  his  direc- 
tion, found  a  verdict  for  the  plaintiff,  for  £12G  damages,  with  liberty 
reserved  to  the  defendants  to  move  for  a  new  trial,  or  nonsuit,  as 
they  might  be  advised. 

Shepherd,  Sergt.,  having,  accordingly,  in  the  present  term,  obtained 
a  rule  nisi  to  enter  a  nonsuit, 

Best  and  Vaughan,  Sergts. ,  on  this  day,  showed  cause;  when 
Lawrence,  J.,  upon  reporting  the  evidence,  said,  that  at  the  time 
of  the  trial  he  had  not  read  the  case  of  Nicholson  v.  Willan,  5  East, 
507.     In  that  case  there  was  no  distinction   in  the  advertisement 


166  CAKKIEKS    OF   GOODS. 

between  the  price  of  carriage,  ami  the  price  of  insurance,  but  the 
distinction  was  t;iken  in  argument,  and  relied  on;  the  court,  how- 
ever, held  the  defendant  not  liable.  Best  contended  that  this  differ- 
ence in  the  two  advertisements  materially  distinguished  the  present 
case  from  that  of  Nicholson  i'.  AYillan;  here  the  contract  is,  that  a 
certain  price  shall  be  paid  for  carriage,  and  an  insurance  over  and 
above  that:  therefore,  inasmuch  as  the  contract  is  to  be  taken  most 
strongly  against  the  party  who  words  it,  the  price  of  carriage  is  the 
compensation  for  the  labor  and  diligence  to  be  bestowed,  and  the 
price  of  insurance  is  the  price  for  covering  those  risks  which  are 
purely  accidental.  [Lawrexce,  J.  In  Xicholson  v.  Willan  it  was 
very  doubtful  whether  the  goods  had  gone  by  any  carriage.]  By  the 
statutes  3  &  4  W.  &  M.  c.  12,  and  21  G.  11^  c.  28,  the  price  of  car- 
riage is  to  be  fixed  by  the  magistrates  at  their  quarter  sessions,  and 
the  latter  st;itute  inflicts  a  penalty  of  £5  upon  carriers  who  bring 
goods  to  London,  for  taking  a  higher  price  than  is  allowed  by  the 
sessions  of  the  county  from  which  they  set  out;  and  this  statute  is 
not,  as  it  has  been  supposed,  repealed  by  any  subsequent  act;  but  if 
these  statutes  be  now  in  force,  it  is  impossible  that  a  carrier  can 
refuse  to  carry  goods  for  the  price  which  the  sessions  fix.  [Hkatii,  J. 
It  does  not  appear  that  any  order  of  sessions  has  been  made  in  the 
present  case.]  The  case  of  Oppenheim  ik  Russell,  3  Bos.  &  I'ull. 
42,  contradicts  the  position,  that  though  a  carrier  cannot  get  rid  of 
his  whole  responsibility,  he  may  vary  it  in  any  shape  that  he  pleases. 
All  four  of  the  judges  there  held,  that  a  carrier  could  not  create  a 
lien  upon  the  goods  delivered  to  him  for  his  general  balance,  because 
he  was  bound  by  the  law  of  the  country  to  receive  and  carry  goods 
for  a  reasonable  reward.  [Lawrence,  J.  That  was  a  lien  as  against 
the  owner  of  the  goods  to  whom  they  were  consigned:  the  court  did 
not  say  that  the  carrier  could  not  have  a  general  lien  against  tlie 
party  sending  the  goods,  if  he  were  also  the  owner.]  But  as  the 
law  binds  the  carrier  equally  to  insure  as  to  carry,  if  he  cannot 
prescribe  the  terms  on  which  he  will  carry,  so  neither  can  he  pre- 
scribe the  terms  on  which  he  will  insure;  or,  if  he  may,  yet  it  is 
not  competent  to  him  to  require  payment  for  an  insurance  against 
his  own  negligence,  by  which,  so  far  as  appeared,  this  loss  was 
occasioned.  Nay,  more,  it  was  the  effect  of  his  own  cupidity;  for 
the  wagon  formerly  was  advertised  as  going  with  a  light  and  a  guard, 
and  inasmuch  as  the  defendant  had  never  publicly  countermanded 
that  advjTtisemont,  the  ])l:iintiff  had  a  right  to  sui)pose  that  it  was 
still  lighted  and  guarded;  he  was  also  bound  to  have  a  wagon  secure 
from  theft,  to  which  he  has  rendered  it  more  liable  by  taking  off  the 
bows;  yet  without  giving  any  notice  of  the  alteration  he  continued 
to  receive  the  same  nite  of  carriage  as  he  did  when  tho  bows  were 
thorn,  and  tlm  wagon  guarded,  wliieh  is  a  gross  fraud.  The  non- 
juiyment  of  the  price  of  insurance  cannot  exonerate  the  carrif^r  fnun 
the  duty  of  ordinary  diligence  and  care;   if  lu-  wishes  to  avail  him- 


LIMITATION   OF   LIABILITY.  167 

self  of  his  renunciation  of  the  character  of  insurer,  he  must  show 
that  the  loss  happened  by  an  insurable  accident,  and  not  by  that 
degree  of  negligence  against  which  every  man  who  undertakes  to  do 
anything  for  hire,  is  bound  to  guard.     The  case  of  Tyly  v.  Morrice, 
Carth.  485,  and  all  the  old  cases,  are  cases  where  a  deceit  is  put  upon 
the  carrier  as  to  the  value  of  the  goods,  and  he  is  relieved  against  it. 
Lane  v.  Cotton,  Salk.  18,  Lord  Holt,  Ch.  J.,  says,  "It  is  a  hard 
thing  to  charge  a  carrier;  but  if  he  should  not  be  charged,  he  might 
keep  a  correspondence  with  thieves,  and  cheat   the  owner  of  his 
goods,  and  he  should  never  be  able  to  prove  it."     This  is  not  only 
sound  law,  but  excellent  sense,  as  well  as  great  authority.     Lyon  v. 
Mells,  5  East,  430.     The  carrier  had  given  notice  "that  he  would 
not  be   liable   for   any  damage  which  should   happen   to  a  cargo, 
unless  it  were  occasioned  by  the  want  of  ordinary  care  in  the  master 
or  crew  of  the  vessel,  and  in  such  case,  he  would  pay  £10  per  cent 
upon  the  loss,  provided  it  did  not  exceed  the  value  of  the  vessel  and 
freight;  and  that  persons  desirous  of  having  their  goods  carried  free 
of  any  risk   might  have  the  same  so  carried  by  entering  into  an 
agreement  for  the  payment  of  extra  freight,  proportionable  to  the 
accepted  responsibility."     Yet  where  a  loss  happened  by  the  vessel 
not  being  seaworthy,  the  owner  was  very  properly  held  liable  to  the 
whole  extent  of  the  loss,  though  it  was  not  one  of  the  events  in 
which  he  consented  to  be  in  any  case  nor  to  any  amount  liable.     Ellis 
V.  Turner,  8  Term  Eep.  532.     The  defendant  endeavored  to  avail 
himself  of  a  similar  notice,  but  the  master  of  the  vessel  having  car- 
ried the  goods  beyond  the  place  where  they  were  to  be  delivered, 
and  at  which  she  touched  and  delivered  a  part,  and  the  ship  being 
lost  on  the  ulterior  voyage,  it  was  held  that  the  owner  was  liable 
beyond  the  £10  per  cent  for  the  full  amount  of  the  loss.     It  would 
be  carrying  the  matter  much  further  than  the  cases  have  hitherto 
gone,  to  say  that  because  a  person  does  not  insure,  therefore  he  shall 
have  no  remedy  for  a  loss  which  is  not  occasioned  by  insurable 
perils.     The  contract  in  this  case  is  not  very  explicit,  but  it  is  to 
be  expounded  with  at  least  as  much  liberality  towards  the  public  as 
towards  the  carrier.     If,  then,   it  had  been  expressly  worded  that 
the  defendant  would  not  be  liable  for  any  loss  incurred  by  the  neg- 
ligence of  himself  or  his  servants,  unless  an  insurance  over  and 
above  the  charge  for  carriage  were  paid,  would  not  the  court  reject 
those  words,   and   say  that  he  should  not   require  a  premium   for 
insurance  against  losses  which  might  happen  for  the  want  of  that 
care  which  is  paid  for  in  the  price  of  carriage? 

Shepherd,  contra.  The  cases  of  Lyon  v.  Mells,  and  Ellis  v. 
Turner,  are  not  applicable ;  the  first  was  decided  on  the  ground  of 
gross  negligence  in  the  carrier,  who  had  accepted  the  goods  to  carry, 
not  upon  the  ground  that  he  might  not  limit  his  responsibility.  In 
the  second  case  the  goods  were  not  lost  in  the  course  of  the  carriage 
which  the  defendant  had  undertaken,  but  he  had  gone  beyond  the 


168  CAKUIEUS   OF   GOODS. 

point  where  they  were   to  be  delivered.     If  tlie   law  that  carriers 
may  limit  their  responsibility  be  wrong,  the  legislature  alone  can 
alter  it;  but  it  probably  is  the  wisest  policy  to  leave  things  to  lind 
thfir  own  level;   if  the  law  fixed  the  same  price  for  goods  of  the 
highest  as  of  the  least  value,  no  one  would  be  a  carrier.     To  show 
that  the   law   had  long  been    so   established,   he  cited  Kenrick   r. 
Eggleston,  Aleyn,  93;  Tyly  r.  Morrice;  Gibbon  v.  Paynton,  4  lUur. 
L'lUS  [160];  Clay  v.  Willan,  1  H.  Bl.  298;  Izet  v.  Mountain,  4  East, 
371.     A  warehouse-keeper  may  be  answerable  for  a  loss  by  fire,  if 
the  loss  happens  by  his  especial  gross  negligence;  but  in  general,  a 
warehouseman  is  not  answerable  for  that  species  of  loss.     So  a  car- 
rier, like  any  other  person,  may  be  liable  for  gross  negligence,  but 
if  he  makes  an  especial  acceptance  of  the  goods,  he  is  not  liable 
unless  the  plaintiff  shows  that  he  is  guilty  of  this  gross  negligence. 
It  would  be  impossible  for  the  defendant  ever  to  prove  the  negative, 
that  he  was  not  guilty  of  gross  negligence.     Rothwell  /•.  Davis,  B.  R. 
sittings  after  the  last  Easter  Term,  before  Bay  ley,  J.,  the  carrier 
gave  notice  that  he  would  not  be  answerable  "unless  the  goods  were 
entered,  and  properly  paid  for."     Nothing  was  paid  but  the  booking, 
and   it  was  held  that  the   plaintiff  could  not  recover.     So,  in  this 
case,  the  carriers  ret^uire  the  goods  to  be  "entered  according  to  their 
value,"  which  is  not  done;  so  that  even  if  all  that  relates  to  the 
insurance  be   laid   out  of  the  question,  still  the  plaintiff  cannot 
recover.     [Lawkexce,  J.     No;  the  words  are  "will  not  be  answer- 
able unless  entered;"  he  does  not  say  "entered  according  to  the 
value,"   but  that   the    insurance  shall  be  according  to  tlie   value.] 
Clay  f.  Willan  is  in  point,  where  the  words  were,  that  he  would  not 
be  answerable  for  goods  above  five  pounds'  value  unless  entered  as 
such,  and  a  penny  insurance  paid  for  each  pound  value.     If  the  car- 
rier were  to  say  he  would  not  be  accountable   for  any  of  his  acts, 
commissive  or  omissive,  although  they  amount  to  gross  negligence, 
that  would  l)e  an  exception  of  the  very  thing,  and  the  court  would 
not  permit  such  a  contract;  but  that  is  not  this  case. 

Maxhkikli),  Ch.  J.     These  cases,  so  decided,  seem  to  have  decided 

the  present.     However  we  may  wish  the  law  to  be,  we  cannot  make 

it  different  than  as  we  find  it.     In  looking  into  the  books,  we  find 

the  special  {icceptance  much  okh-r  tlian  I  had  supposed  it  to  be.    And 

it  leads  to  great  frauds,  for  on  account  of  the  number  of  persons 

always  attending  about  these  open   wagon-yards  and  ottices,  every 

I..;  ..",,,  sUnding  around  is  apprised  tliat  this  or  that  parcel  contains 

or  jewels  to  the  amount  of  many  hundred  pounds;  tliis  is  a 

}.;p  IT    inconvenience,  but  however  inconvenient  it  is,  it  seems  that 

frr.m  tJ.o  ,l:,vs  of  Aloyn  down  to  this  hoiir,  the  cases  have  again  and 

t  the  liability  of  a  carrier  may  be  so  restrained; 

,         .11  is,  whether  this  loss  is  within  the  contract  that 

hiiH  been  made,  and  it  seems,  according  to  one  or  two  of  the  cases, 

that   it   is   not;    for   the    losses    have   booii    of    a    v(M-y    suspicious 


LLMITATION   OF    LIABILITY,      .  169 

nature ;  in  one  case,  the  parcel  seems  to  have  been  lost  before  it  left 
the  yard;  but,  however,  as  there  was  no  proof  liere  of  express  negli- 
gence, it  seems  that  there  must  be  a  rule  absolute  for  a  nonsuit.  It 
would,  however,  be  useless  to  pass  any  such  statutes  to  limit  the 
price  of  carriage  if  a  carrier  be  at  liberty  to  charge  what  he  pleases : 
the  price  must  be  reasonable. 

Heath,  J.,  was  of  the  same  opinion.  In  some  wagons  there  are 
particular  safe  places  in  the  very  centre,  to  deposit  jewels  and 
articles  of  superior  value,  when  they  are  known  to  be  such. 

Lawrence,  J.  I  was  not  aware  of  the  cases  which  have  been  made 
use  of,  for  the  word  "insurance."  It  is  a  very  foolish  word,  and  if 
the  defendants  had  said,  we  will  not  in  any  case  be  liable  for  the 
goods,  unless  a  certain  sum  is  paid,  according  to  the  value,  it  would 
have  been  clear  and  intelligible;  and  there  is  nothing  unreasonable 
in  a  carrier  requiring  a  greater  sum,  when  he  carries  goods  of  greater 
value,  for  he  is  to  be  paid  not  only  for  his  labor  in  carrying,  but  for 
the  risk  which  he  runs,  which  is  greater  in  proportion  to  the  value 
of  the  goods.  I  would  not,  however,  have  it  understood  that  carriers 
are  at  liberty  by  law  to  charge  whatever  they  please;  a  carrier  is 
liable  by  law  to  carry  everything  which  is  brought  to  him  for  a  rea- 
sonable sum  to  be  paid  for  the  same  carriage,  and  not  to  extort  what 
he  will, 

Chambre,  J.  I  am  of  the  same  opinion.  The  defendants  say 
they  will  not  be  insurers,  we  will  not  enter  into  that  situation  at  all, 
unless  we  are  paid  according  to  the  value.  Therefore  there  must 
be  a  nonsuit.  Eule  absolute. 


RILEY  V.    HORNE. 
Common  Pleas.     5  Bing.  217.     1828. 

Case  against  the  defendants  as  common  carriers,  for  negligence  in 
losing  goods  intrusted  to  them,  to  be  safely  conveyed  by  them  from 
Kettering  to  London,  and  there  to  be  delivered  to  the  plaintiffs  for 
reward  to  the  defendants  in  that  behalf.     Plea,  not  guilty. 

At  the  trial,  before  Best,  C.  J.,  London  sittings  after  Hilary 
Term,  1828,  it  appeared  that  the  plaintiff's  were  silk-weavers  residing 
in  London,  and  carrying  on  business  there  and  at  Kettering;  that 
the  defendants'  coach  ran  from  the  George  and  Blue  Boar,  London, 
to  Kettering  and  back;  that  at  the  George  and  Blue  Boar  there  was 
a  notice,  that  the  proprietors  of  coaches  which  set  out  from  that 
office  would  not  be  responsible  for  goods  above  the  value  of  £5, 
unless  entered  as  such,  and  paid  for  accordingly ;  that  the  plaintiffs 
were  aware  of  this  notice,  and  in  the  habit  of  sending  goods  up  and 
down  by  the  defendants'  coach;  that  the  goods  in  question,   silks 


170  CAKRIEKS   OF   GOODS. 

to  the  value  of  £46,  were  delivered  to  the  defendants  by  the  plain- 
tiffs' servant,  at  the  defendants'  office  at  Kettering,  to  be  conveyed 
to  London,  and  that  the  servant  saw  no  such  notice  in  the  office  at 
Kettering;  that  the  goods  were  never  delivered  to  the  plaintiffs. 

The  learned  Chief  Justice,  thinking  the  notice  in  the  office  at  the 
George  and  Blue .  Boar,  of  which  the  plaintiffs  were  cognizant, 
applied  only  to  the  journey  out  to  Kettering,  and  not  to  the  journey 
back,  a  verdict  was  found  for  the  plaintiffs  with  leave  for  the 
defendants  to  move  to  set  it  aside. 

Be-st,  C.  J.  In  a  state  of  society  such  as  that  we  live  in.  —  in 
which  we  are  supplied  with  the  necessaries  and  conveniences  of  life 
by  an  interchange  of  the  produce  of  the  soil  and  industry  of  every 
part  of  the  world,  —  so  much  property  must  be  intrusted  to  carriers 
that  it  is  of  great  importance  that  the  laws  relating  to  the  carriage 
of  goods  should  be  rendered  simple  and  intelligible;  and  that  they 
should  be  such  as  to  provide  for  the  safe  conveyance  of  property, 
and  at  the  same  time  protect  the  carrier  against  risks,  the  extent  of 
which  be  cannot  know,  and,  therefore,  cannot  determine  what  pre- 
cautions are  proper  for  his  security. 

When  goods  are  delivered  to  a  carrier,  they  are  usually  no  longer 
under  the  eye  of  the  owner;  he  seldom  follows  or  sends  any  servant 
with  them  to  the  place  of  their  destination.  If  they  should  be  lost 
or  injured  by  the  grossest  negligence  of  the  carrier  or  his  servants, 
or  stolen  by  them,  or  by  thieves  in  collusion  with  tliem,  the  owner 
■would  be  unable  to  prove  either  of  these  causes  of  loss;  his  witnesses 
must  be  the  carrier's  servants,  and  they,  knowing  that  they  could 
not  be  contradicted,  would  excuse  their  masters  and  themselves. 

To  give  due  security  to  pro])erty,  the  law  lias  added  to  that  respon- 
sibility of  a  carrier  which  immediately  rises  out  of  his  contract  to 
carry  for  a  reward  —  namely,  that  of  taking  all  reasonable  care  of 
it  —  the  responsibility  of  an  insurer. 

P'rom  his  liability  as  an  insurer,  the  carrier  is  only  to  bo  relieved 
by  two  things,  both  so  well  known  to  all  tlie  country  wlien  they 
happen,  that  no  person  would  be  so  rash  as  to  attempt  to  jirove  tliat 
they  had  happened  when  they  had  not, — namely,  tlio  act  of  CJod 
and  the  king's  enemies. 

As  the  law  makes  tlic  carrier  an  insurer,  and  as  tlie  goods  lie 
carries  may  be  injured  or  destroyed  by  many  accidents,  against 
which  no  care  on  the  part  (»f  tlie  carrier  can  protect  them,  he  is  as 
much  entitled  to  bo  paid  a  ]»remiura  for  his  insurance  of  their 
delivory  at  the  place  of  their  destination,  as  for  the  labor  and 
exi>ense  of  carrying  them  there.  Indeed,  besides  the  risk  that  lie 
run«,  his  attontifiu  becomes  more  anxious,  and  his  journey  is  more 
fX{)enMive,  in  proportion  to  the  value  of  his  load.  If  he  has  things 
of  ffroat  value  contained  in  such  small  packages  as  to  be  objects 
of   theft  or  embezzlement,  a  stronger  and  more  vigilant  guard  is 


LIMITATION   OF   LIABILITY.  171 

required  than  when  he  carries  articles  not  easily  removed,  and  whicli 
offer  less  temptation  to  dishonesty.  He  must  take  what  is  offered 
to  him  to  carry  to  the  place  to  which  he  undertakes  to  convey  goods, 
if  he  has  room  for  it  in  his  carriage.  The  loss  of  one  single  package 
might  ruin  him. 

By  means  of  negotiable  bills,  immense  value  is  now  compressed 
into  a  very  small  compass.  Parcels  containing  these  bills  are  con- 
tinually sent  by  common  carriers.  As  the  law  compels  carriers  to 
undertake  for  the  security  of  what  they  carry,  it  would  be  most 
unjust  if  it  did  not  afford  them  the  means  of  knowing  the  extent  of 
their  risk.  Other  insurers  (whether  they  divide  the  risk,  which 
they  generally  do,  amongst  several  different  persons,  or  one 
insurer  undertakes  for  the  insurance  of  the  whole)  always  have 
the  amount  of  what  they  are  to  answer  for  specified  in  the  policy 
of  insurance. 

If  the  extent  of  risk  is  ascertained  in  cases  in  which  persons  are 
not  obliged  to  insure,  and  if  they  do  insure  may  fix  their  own  rate 
of  premium,  there  is  greater  reason  for  ascertaining  it  where  one  is 
compelled  to  become  an  insurer,  and  can  only  charge  what  the 
magistrates  in  sessions,  if  they  think  proper  to  settle  the  rates  of 
carriage,  will  allow  under  the  statute  of  William  and  Mary,  and 
where  no  such  rates  are  made,  what  a  jury  shall  think  reasonable. 
It  would  be  inconvenient,  perhaps  impossible,  to  have  a  formal 
contract  made  for  the  carriage  of  every  parcel  in  which  the  value  of 
the  parcel  should  be  specified,  as  well  as  the  price  to  be  paid  for  the 
carriage.  But  it  would  add  very  little  to  the  labor  of  the  book- 
keeper if  he  entered  the  value  of  each  package,  and  gave  the  person 
who  brought  it  a  written  memorandum  of  such  entry ,  like  the  slips 
now  made  on  an  agreement  for  a  policy  of  insurance. 

The  giving  of  such  memorandums  will  entirely  put  an  end  to  the 
litigation  which  the  notices  of  carriers  now  give  occasion  to,  and 
would  make  the  practice  of  carriers,  as  nearly  as  circumstances  will 
permit,  conformable  to  that  of  all  other  insurers.  Perhaps  such 
memoranda  might  bring  the  parties  within  the  reach  of  the  stamp 
laws;  and  the  apprehension  of  this  may  have  prevented  carriers 
from  adopting  a  practice  so  effectual  for  their  security,  and  have 
driven  them  to  the  expedient  of  giving  notices  that  they  will  not  be 
answerable  beyond  a  certain  sum,  unless  the  parcels  are  entered  and 
paid  for  as  parcels  of  value. 

In  Batson  v.  Donovan,  4  B.  &  A.  21,  the  Court  of  King's  Bench 
considered  a  notice  of  this  sort,  the  knowledge  of  which  was  brought 
home  to  the  party  sending  goods,  as  equivalent  to  a  request  on  the 
part  of  the  carrier  to  know  the  value,  and  that  it  made  it  the  duty 
of  the  owner  of  the  goods  to  apprise  the  carrier  that  the  parcel  was 
of  value. 

The  legislature  would  probably  think,  if  its  attention  were  called 
to  the  subject,  that  a  stam]i  duty  on  contracts  relative  to   inland 


172  CARRIERS   OF   GOODS. 

carriage  would  he  a  very  heavy  and  very  inconvenient  tax.  and 
would  remove  the  objection  to  written  evidence  of  such  contracts. 

A  carrier  has  a  right  to  know  the  value  and  quality  of  what  he  is 
required  to  carry.  If  the  owner  of  the  goods  will  not  tell  him  what 
his  goods  are  and  what  they  are  worth,  the  carrier  may  refuse  to 
tike  charge  of  them^  but  if  he  does  take  charge  of  them,  he  waives 
bis  right  to  know  their  contents  and  value.  It  is  the  interest  of  the 
owner  of  goods  to  give  a  true  account  of  their  value  to  a  carrier,  as 
in  the  event  of  a  loss  he  cannot  recover  more  than  the  amount  of 
what  he  has  told  the  carrier  they  were  worth;  and  he  cannot  recover 
more  than  their  real  worth,  wliatever  value  he  may  have  put  on 
them  when  he  delivered  them  to  the  carrier. 

It  was  decided  in  Gibbon  v.  Payntou,  4  Burr.  2298  [160]  that 
any  artifice  made  use  of  to  induce  a  carrier  to  think  that  a  parcel  of 
jewelry  contained  only  things  of  small  value,  would  prevent  the 
owner  from  recovering  for  the  loss  of  his  parcel. 

In  Kenrig  v.  Egglestou,  Al.  93,  it  was  held  that  the  owner  was 
not  re(iuired  to  state  all  the  contents  of  the  parcel,  but  it  was  for 
the  carriers  to  make  a  special  acceptance.  In  Tyly  and  Others  r. 
Morrice,  Carth.  4S5.  in  which  the  preceding  case  is  recognized  and 
confirmed,  it  is  said  that  the  true  principle  is,  that  the  carrier  is 
only  liable  for  what  he  is  fairly  told  of.  In  Titchburne  v.  "White, 
Str.  14."),  it  was  determined  that  a  carrier  is  answerable  for  money, 
although  he  was  not  told  that  the  box  delivered  to  him  contained 
any  money,  unless  he  was  told  that  the  box  did  7iot  contain  money, 
or  he  accepted  it  on  the  condition  that  it  did  not  contain  money. 

It  may  be  collected  from  these  authorities,  that  it  is  the  duty  of 
the  carrier  to  inquire  of  the  owner  as  to  the  value  of  his  goods,  and 
if  he  neglects  to  make  such  inquiry,  or  to  make  a  special  accei)tance, 
and  cannot  prove  knowledge  of  a  notice  limiting  his  responsibility, 
he  is  responsible  for  the  full  value  of  the  goods,  however  great  it 
may  be.  This  is  a  convenient  rule;  it  imposes  no  difficulty  on  the 
carrier.  He  knows  his  own  business,  and  the  laws  relative  to  it. 
Many  persons,  who  have  occasion  to  send  their  goods  by  carriers, 
are  entirely  ignorant  of  what  they  ought  to  do  to  insure  their  goods. 
Justice  and  policy  require  that  the  carriers  should  be  obliged  to  tell 
them  wliat  they  should  do. 

Although  a  carrier  may  i)rove  that  tlie  owner  of  goods  knew  that 
the  carrier  liad  limited  liis  responsi])ility  by  a  stiflieient  notice,  yet 
if  a  loss  l)e  occasioned  by  gross  negligence,  tlie  notice  will  not  pro- 
toct  him.  Kvery  man  that  undertakes  for  a  reward  to  do  any  ser- 
vice «ibliges  himself  to  u.so  due  diligence  in  the  perff)rniance  of  that 
iMjrvire.  Independently  of  liis  ro8])onsibility  as  an  insurer,  a  carrier 
iji  liable  for  gross  negligence.  This  point  is  settled  by  Sl'*:it  '•. 
nagg,  .'  I'..  ^  A.  :M2;  Wright  '•.  Snell.  i<l.  .T.O;  Hirkett  r.  Willan, 
2  }i.  &  A.  .'r»r,;  l?.-ck  V.  Evans,  IG  East.  I'll;  an<l  liodenliam  v. 
Ik'nm-tt,    t  I'rice,  .'{1. 


LIMITATION   OF   LIABILITY.  173 

The  jury  are  to  decide  what  is  gross  negligence.  "We  may,  how- 
ever, observe  that  the  most  anxiously-attentive  person  may  slip 
into  inadvertence  or  want  of  caution.  Such  a  slip  would  be  negli- 
gence, but  not  such  a  degree  of  negligence  as  would  deprive  a  carrier 
of  the  protection  of  his  notice.  The  notice  will  protect  him,  unless 
the  jury  think  that  no  prudent  person,  having  the  care  of  an  impor- 
tant concern  of  his  own,  would  have  conducted  himself  with  so 
much  inattention  or  want  of  prudence  as  the  carrier  has  been  guiltv 
of. 

If  a  notice  touching  the  responsibility  of  the  carrier  be  given,  it 
matters  not  by  whom  it  is  given,  or  in  what  form,  if  it  tells  the 
owner  of  the  goods  that  the  carrier  by  whom  he  proposes  to  send 
them  will  not  undertake  for  their  safe  conveyance,  unless  paid  a 
premium  proportioned  to  their  value. 

"We  have^stablished  these  points,  —  that  a  carrier  is  an  insurer  of 
the  goods  which  he  carries ;  that  he  is  obliged,  for  a  reasonable 
reward,  to  carry  any  goods  to^  the  place  to  which  he  professes  to 
carry  goods  that  are  offered  him,  if  his  carriage  will  hold  them,  and 
he  is  informed  of  their  quality  and  value;  that  he  is  not  obliged  to 
take  a  package,  the  owner  of  jwhich  will  not  informhim  what_  are 
its  contents,  and  of  what  value  they  are ;  and  if  he  does  not  ask  this 
information,  or  if,  when  he  asks,  and  is  not  answered,  he  takes  the 
goods,  he  is  answerable  for  their  amount,  whatever  that  may  be; 
that  he  may  limit  his  responsibility,  as  an  insurer,  by  notice ;  but 
that  a  notice  will  not  protect  him  against  the  consequences  of  a  loss 
by  gross  negligence.^  .  .  . 


HOLLISTER  v.   NOWLEN.  3^^^^ 

19  Wend.  (N.  Y.  Sup.  Ct.)  234.     1838. 

This  was  an  action  against  the  defendant  as  a  common  carrier  for 
the  loss  of  the  plaintiff's  trunk  and  contents.  A  case  was  agreed  on 
between  the  parties  stating  the  following  facts :  the  defendant  was 
a  member  of  a  company,  the  proprietors  of  the  three  daily  lines  of 
stagecoaches  running  between  Canandaigua  and  Buffalo,  one  of 
which  was  called  the  Telegraph  line.  The  defendant  resided  at 
Avon,  and  with  his  teams  and  coaches  ran  that  part  of  the  route 
lying  between  Avon  and  Le  Roy.  East  of  Canandaigua  the  line 
was  owned  by  other  proprietors.  The  plaintiff  resided  at  Utica, 
and  at  that  place  entered  as  a  passenger  in  the  Telegraph  line  for 
Buffalo.     His  baggage  consisted  of  a  trunk,  containing  clothing  to 

1  The  judge  discusses  the  sufficiency  of  certain  notices,  but  that  portion  of  the 
opinion  is  not  deemed  important,  and  is  omitted.  —  [I^D.] 


174  CARRIERS   OF   GOODS. 

the  value  of  S116.7o.  The  fare  was  duly  paid.  On  the  20tli  July, 
1833,  before  daylight  in  the  morning,  the  plaintiff  left  Avon  in  the 
defendant's  coach  on  his  way  to  Buffalo.  The  trunk  was  placed  in 
the  boot  behind  the  coach,  which  was  carefully  secured  by  strong 
leather  covering,  fastened  with  strong  leather  straps,  and  buckles, 
and  was  made  secure  against  any  loss  except  by  violence.  After 
proceeding  about  three  miles  it  was  discovered  that  the  straps  con- 
tining  the  cover  of  the  boot  had  been  cut,  and  the  plaintiff's  trunk 
with  its  contents  had  been  feloniously  stolen  and  carried  off.  There 
was  no  negligence  on  the  part  of  the  defendant  or  his  servants  in 
relation  to  the  trunk,  further  than  may  be  implied  from  the  facts 
above  stated.  The  plaintiff  left  the  stage,  went  back  to  Avon,  and 
rei)orted  his  loss ;  and  the  defendant  offered  a  reward,  and  made  all 
proper  efforts  for  the  recovery  of  the  iirojicrty,  but  without  success. 

The  Telegraph  line  was  established  in  1828.  A  public  notice 
that  baggage  sent  or  carried  in  the  Telegraph  line  would  he  at  tlte 
risk  of  the  oivner  thereof,  printed  on  a  large  sheet,  had  been  uni- 
formly kept  placarded  in  most  of  the  stage  offices  and  public  houses 
from  Albany  to  Buffalo;  and  particularly  such  notice  had  been 
continually  affixed  up  in  the  stage  office  and  principal  public  houses 
at  Utica,  where  the  plaintiff  had  resided  for  the  last  three  years 
before  the  trunk  was  lost.  It  was  stipulated  that  should  the  court 
be  of  opinion  that  the  plaintiff  was  entitled  to  recover,  judgment 
should  be  entered  in  his  favor  for  $110.75,  and  interest  from  July 
20,  18.33,  besides  costs. 

Bkonson,  J.  Stagecoach  proprietors,  and  other  carriers  by  land 
and  water,  incur  a  very  different  responsibility  in  relation  to  the 
passenger  and  his  baggage.  For  an  injury  to  the  passenger  they 
are  answerable  only  where  there  has  been  a  want  of  projter  care, 
diligence,  or  skill;  but  in  relation  to  baggage  they  are  regarded  as 
insurers,  and  must  answer  for  any  loss  not  occasioned  by  inevitable 
accident  or  public  enemies.  As  the  point,  though  made,  was  not 
discussed  by  the  defendant's  counsel,  I  shall  content  myself  with 
referring  to  a  few  cases  to  prove  that  they  are  liable  as  common 
carriers,  for  the  loss  or  injury  of  the  iirojjerty  of  the  passenger. 
Orange  Co.  Bank  v.  Brown,  9  Wendell,  85  [34] ;  Camden  Company 
»•.  Burke,  13  id.  Oil;  Brooke  r,  I'ickwick,  4  Bing.  218;  4  Esp.  K. 
177;  2  Kent,  001.  Tlie  fact  that  the  owner  is  i)resent,  or  sends  his 
servant  to  look  after  the  property,  does  not  alter  the  case,  llobin- 
»on  V.  Dunmore,  2  Bos.  &.  Bull.  418.  Chambre,  J.,  said:  "It  has 
l^een  determined,  that  if  a  man  travel  in  a  stagecoach  and  take  his 
!  '.  ith  him,  though  he  has  his  eye  u])on  the  portmanteau, 

\  •  r  is  not  absolved  from  his  responsibility,  l»ut  will  be 

liable  if  the  portmanteau  be  lost."  The  liability  of  a  carrier  is 
like  that  of  an  innkeeper;  and  it  was  said  in  Cayle's  case,  8  Co.  03, 
that  "it  is  no  excuse  for  tlie  innkeeper  to  say  that  he  delivered  the 
guest  the  key  of  the  chamber  in  which  he  lodged,  and  that  he  left 


LIMITATION   OF   LIABILITY.  175 

the  door  open ;  but  he  ought  to  keep  the  goods  and  chattels  of  his 
guest  there  in  safety."  When  there  is  no  fraud,  the  fact  that  the 
owner  accompanies  the  property  cannot  affect  the  principle  on  which 
the  carrier  is  charged  in  case  of  loss. 

The  principal  question  in  the  cause  arises  out  of  the  notice  given 
by  the  coach  proprietors,  that  baggage  carried  by  the  Telegraph  line 
would  be  at  the  risk  of  the  oivner  ;  and  the  first  inquiry  is,  whether 
there  was  sufficient  evidence  to  charge  the  plaintiff  with  a  knowl- 
edge of  the  notice.  If  we  are  to  follow  the  current  of  modern  Eng- 
lish decisions  on  this  subject,  it  cannot  be  denied  that  there  was 
evidence  to  be  left  to  a  jury,  and  upon  which  they  might  find  that 
the  plaintiff  had  seen  the  notice.  But  I  think  the  carrier,  if  he  can 
by  any  means  restrict  his  liability,  can  only  do  so  by  proving  actual 
notice  to  the  owner  of  the  property.  I  agree  to  the  rule  laid  down 
by  Best,  C.  J.,  in  Brooke  v.  Pickwick,  4  Bing.  218,  decided  in 
1827,  when  the  courts  of  Westminster  Hall  had  commenced  retra- 
cing their  steps  in  relation  to  the  liability  of  carriers,  and  were 
endeavoring  to  get  back  on  to  the  firm  foundation  of  the  common 
law.  He  said:  "If  coach  proprietors  wish  honestly  to  limit  their 
responsibility,  they  ought  to  announce  their  terms  to  every  individ- 
ual who  applies  at  their  office,  and  at  the  same  time  to  place  in  his 
hands  a  printed  paper,  specifying  the  precise  extent  of  their  engage- 
ment. If  they  omit  to  do  this,  they  attract  customers  under  the 
confidence  inspired  by  the  extensive  liability  which  the  common  law 
imposes  upon  carriers,  and  then  endeavor  to  elude  that  liability  by 
some  limitation  which  they  have  not  been  at  the  pains  to  make 
known  to  the  individual  who  has  trusted  them." 

I  should  be  content  to  place  my  opinion  upon  the  single  ground 
that  if  a  notice  can  be  of  any  avail,  it  must  be  directly  brought 
home  to  the  owner  of  the  property ;  and  that  there  was  no  evidence 
in  this  case  which  could  properly  be  submitted  to  a  jury  to  draw  the 
inference  that  the  plaintiff  knew  on  what  terms  the  coach  proprietor 
intended  to  transact  his  business.  But  other  questions  have  been 
discussed;  and  there  is  another  case  before  the  court  where  the 
judge  at  the  circuit  thought  the  evidence  sufficient  to  charge  the 
plaintiff  with  notice.  It  will  therefore  be  proper  to  consider 
the  other  questions  which  have  been  made  by  the  counsel. 

Can  a  common  carrier  restrict  his  liability  by  a  general  notice, 
in  any  form,  brought  home  to  the  opposite  party?  Without  intend- 
ing to  go  much  at  large  into  this  vexed  question,  it  will  be  necessary 
to  state  some  leading  principles  relating  to  the  duties  and  liabilities 
of  the  carrier,  and  the  ground  upon  which  his  responsibility  rests. 

The  rules  of  the  common  law  in  relation  to  common  carriers  are 
simple,  well  defined,  and,  what  is  no  less  important,  well  under- 
stood. The  carrier  is  liable  for  all  losses  except  those  occasioned 
by  the  act  of  God  or  the  public  enemies.  He  is  regarded  as  an 
insurer  of  the  property  committed  to  his  charge,  and  neitlier  destruc- 


176  CAKUIKKS   OF    GOODS. 

tion  by  fire,  nor  robbery  by  armed  men,  will  discharge  him  from 
liability.  Holt,  C.  J.,  iu  prououucing  his  celebrated  judgment  iu 
the  case  of  Coggs  v.  Baruard,  L*  Ld.  Eaym.  1)18,  said:  "This  is  a 
politic  establishment,  contrived  by  the  policy  of  the  law  for  the 
safety  of  all  persons,  the  necessity  of  whose  affairs  obliges  them  to 
trust  these  sorts  of  persons,  that  they  may  be  safe  in  their  ways  of 
dealing."  In  Forward  v.  Pittard,  1  T.  K.  27  [97],  where  the 
Ciirrier  was  held  liable  for  a  loss  by  fire.  Lord  ^Mansfield  said,  that 
•'to  i»revent  litigation,  collusion,  and  the  necessity  of  going  into 
circumstances  impossible  to  be  unravelled,  the  law  presumes  against 
the  carrier,  unless  he  shows  it  was  done  by  the  king's  enemies,  or 
by  such  act  as  could  not  happen  by  the  intervention  of  man,  as 
storms,  lightnings,  and  tempests."  And  in  relation  to  a  loss  by 
robbery  he  said,  "The  true  reason  is,  for  fear  it  may  give  room  for 
collusion,  that  the  master  may  contrive  to  be  robbed  on  purpose,  and 
share  the  spoil."  The  rule  has  been  fully  recognized  in  this  State. 
Colty.  McMechen,  6  Johns.  K.IGO  [104];  Elliot  y.Rossell,  10  Johns. 
K.  1;  Kemp  v.  Coughtry,  11  Johns.  It.  107.  In  Roberts  v.  Turner, 
12  Johns.  R.  232  [32],  Spencer,  J.,  said,  the  carrier  "is  held 
responsible  as  an  insurer  of  the  goods,  to  prevent  combinations, 
chicanery,  and  fraud." 

A  common  carrier  exercises  a  public  employment,  and  conse- 
quently has  public  duties  to  perform.  He  cannot,  like  the  trades- 
man or  mechanic,  receive  or  reject  a  customer  at  pleasure,  or  charge 
any  price  that  he  chooses  to  demand.  If  he  refuse  to  receive  a 
passenger  or  carry  goods  according  to  the  course  of  his  particular 
employment,  without  a  sufficient  excuse,  he  will  be  liable  to  an 
action ;  and  he  can  only  demand  a  reasonable  compensation  ft)r  his 
services  and  the  hazard  which  he  incurs.  2  Ld.  Ray.  1»17;  Rac. 
Ab.,  Carriers  (B.)  Skin.  279;  1  Salk.  24<J,  50;  5  Ring.  217;  o  Tavmt. 
272,  per  Lawrence,  J.;  2  Kent,  599;  Story  on  Bailments,  328; 
Jeremy  on  Carriers,  59. 

It  has  been  said  that  the  carrier  is  liable  in  respect  of  his  reward. 
Lane  v.  Cotton,  1  Salk.  143.  Lord  Coke  says,  "He  liath  his  hire, 
and  thereby  implicitly  undertaketh  the  safe  delivery  of  the  goods 
delivered  to  him."  Co.  Litt.  89  [a.].  The  carrier  may  no  doubt 
dcMiiand  a  reward  ijroj.ortioned  to  the  services  he  renders  and  the 
risk  he  incurs;  and,  liaving  taken  it.  he  is  treated  as  an  insurer,  and 
bound  to  the  safe  delivery  of  the  ])roperty.  lint  the  extent  of  liis 
liability  docs  not  depend  on  the  terms  of  his  contract;  it  is  declared 
by  law.  His  undertaking,  when  reduced  to  form,  does  not  differ 
from  tluit  of  any  otlter  jjcrson  who  may  agree  to  carry  goods  from 
ono  \)\iicis  t^j  another;  and  yet  one  who  does  not  usually  exercise 
this  public  employment  will  incur  no  responsibility  beyond  that  of 
an  ordinary  bailee  for  hire;  he  is  not  answerable  for  a  loss  by  any 
means  against  wliicli  he  could  not  have  guarded  by  ordinary  dili- 
genc«.     It  is  not  the  form  of  the  contract,  b\it  the  juiliey  of  tlie  law, 


LIMITATION"   OF   LIABILITY.  177 

which  determines  the  extent  of  the  carrier's  liability.  In  Ansell  v. 
Waterhouse,  2  Chit.  K.  1,  which  was  an  action  on  tlie  case  against 
the  proprietor  of  a  stagecoach  for  an  injury  to  the  plaintiff's  wife, 
Holroyd,  J.,  said:  "This  action  is  founded  on  what  is  quite  col- 
lateral to  the  contract,  if  any;  and  the  terms  of  the  contract,  unless 
changing  the  duty  of  a  common  carrier,  are  in  this  case  quite  hmiia- 
terlal.  The  declaration  states  an  obligation  imposed  \ipon  him  hij 
the  laiv.  This  is  an  action  against  a  person,  who,  by  an  ancient 
law,  held  as  it  were  a  p)uhUc  office,  and  was  bound  to  the  public. 
This  action  is  founded  on  the  general  obligation  of  the  law."  In 
Forward  v.  Fittard,  1  T.  R.  27  [97],  Lord  Mansfield  said:  "It 
appears  from  all  the  cases  for  100  years  back  that  there  are  events 
for  which  the  carrier  is  liable  independent  of  his  contract.  By  the 
nature  of  his  contract,  he  is  liable  for  all  due  care  and  diligence- 
and  for  any  negligence  he  is  suable  on  his  contract.  But  there  is  a 
further  degree  of  responsibility  by  the  custom  of  the  realm,  that  is, 
by  the  covimoyi  laio  ;  a  carrier  is  in  the  nature  of  an  insurer ^  See 
also  Hide  v.  Proprietors,  etc.,  1  Esp.  R.  36. 

The  law  in  relation  to  carriers  has  in  some  instances  operated 
with  severity,  and  they  have  been  charged  with  losses  against  which 
no  degree  of  diligence  could  guard.  But  cases  of  this  description 
are  comparatively  of  rare  occurrence ;  and  the  reason  why  they  are 
included  in  the  rule  of  the  common  law  is  not  because  it  is  fit  in 
itself  that  any  man  should  answer  without  a  fault,  but  because  there 
are  no  means  of  effectually  guarding  the  public  against  imposition 
and  fraud,  without  making  the  rule  so  broad  that  it  will  sometimes, 
operate  harshly.  It  was  well  remarked  by  Best,  C.  J.,  in  Riley  v.' 
Home,  5  Bing.  217  [169],  that  "when  goods  are  delivered  to  the 
carrier,  they  are  usually  no  longer  under  the  eye  of  the  owner;  he 
seldom  follows  or  sends  any  servant  with  them  to  their  place  of  des- 
tination. If  they  should  be  lost  or  injured  by  the  grossest  negli- 
gence of  the  carrier  or  his  servants,  or  stolen  by  them,  or  by  thieves 
in  collusion  with  them,  the  owner  would  be  unable  to  prove  either 
of  these  causes  of  loss.  His  witnesses  must  be  the  carrier's  ser- 
vants, and  they,  knowing  that  they  could  not  be  contradicted,  would 
excuse  their  masters  and  themselves."  These  remarks  lose  little  of 
their  force  when  applied  to  the  case  of  passengers  in  stages,  steam- 
boats, and  railroad  cars.  For  although  they  are  in  the  neighbor- 
hood of  their  property,  it  is  neither  under  their  eye,  nor  have  they 
any  efficient  means  of  protecting  it  against  the  consequences  of  negli- 
gence and  fraud.  The  traveller  is  usually  among  strangers;  his 
property  is  in  the  hands  of  men  who  are  sometimes  selected  with 
little  regard  to  their  diligence  and  fidelity;  and  if  tlie  remedy  of  the 
owner  in  the  case  of  loss  depend  on  the  question  of  actual  negligence 
or  fraud,  he  must  make  out  his  right  to  recover  by  calling  the  very 
men  whose  recklessness  or  frailty  has  occasioned  the  injury.  It  Avas 
remarked  by  Best,  C.  J.,  in  Brooke  v.  Pickwick,  4  Bing.  218,  that, 

]-2 


173  CARKIERS   OF   GOODS. 

••  though  coach  proprietors  of  the  present  day  are  a  respectable  and 
opuleut  class,  many  of  the  persons  employed  by  them  resemble 
those  whom  the  common  law  meant  to  guard  against.'' 

There  is  less  of  hardship  in  the  case  of  the  carrier  than  has 
sometimes  been  supposed;  for  while  the  law  holds  him  to  an  extra- 
ordinary degree  of  diligence,  and  treats  him  as  an  insurer  of  tlie 
property,  it  allows  him,  like  other  insurers,  to  demand  a  premium 
proportioned  to  the  hazards  of  his  employment.  The  rule  is  founded 
upon  a  great  principle  of  public  policy ;  it  has  been  approved  by 
many  generations  of  wise  men;  and  if  the  courts  were  now  at  liberty 
to  make  instead  of  declaring  the  law,  it  may  well  be  questioned 
whether  they  could  devise  a  system  which,  on  the  whole,  would 
operate  more  beneficially.  I  feel  the  more  confident  in  this  remark 
from  the  fact  that  in  Great  Britain,  after  the  courts  had  been  per- 
plexed for  thirty  years  with  various  modifications  of  the  law  in 
relation  to  carriers,  and  when  they  had  wandered  too  far  to  retrace 
their  steps,  the  legislature  finally  interfered,  and  in  all  its  most 
important  features  restored  tlie  salutary  rule  of  the  common  law. 

The  doctrine  that  a  carrier  might  limit  his  responsibility  by  a 
general  notice  brought  home  to  the  employer,  prevailed  in  England 
for  only  a  short  period.     In  Smith  v.  Home,  8  Taunt.  144,  liurrough, 
J.,  said:  "The  doctrine  of  notice  was  never  known  until  tlie  case  of 
Forward  v.  Tittard,   1  T.  li.  27  [97],  which  I  argued  many  years 
ago."     That  case  was  decided  in  1785,  and  it  is  remarkable  that  it 
does  not  contain  one  word  on  the  subject  of  notice.     If  that  question 
was  in  any  form  before  the  court,  it  is  not  mentioned  by  the  reporter; 
and  the  decision   was  against   the   carrier,  although  the    loss    was 
occasioned   by    fire,    without   his   default.     The  doctrine   was  first 
recognized  in  Westminster  Hall  in  1804,  when  the  case  of  Nicholson 
»•.  Wilhin,  5  East,  507,  was  decided.     Lord  Ellenborough  said,  the 
practice  of  making  a  "special  acceptance"  had  prevailed  for  a  long 
time,  and  that  there  was  "no  case  to  be  met  with  in  the  books  in 
which  the  right  of  a  carrier  thus  to  limit  by  special  contmrt  his  own 
responsibility  has  ever  been  by  express  decision  denied."     "What- 
ever maybe  the  rule  where  there  is  /n /(//•/ a  special  contract,  the 
learned  judge  could  not  have  intended  to   say,   that  a  carrier  had 
for  a  long  time  been  allowed  to  limit  his  liability  by  a  general 
notice,  or   tliat  a  special  contract  had  been   implied   from   such  a 
notice;  for  lie  refers  to  no  c:ise  in  sui>port  of  the  j)Osition,  and  would 
have  .searched  in  vain  to  find  one.     Only  eleven   years   before  (in 
IT'J.'J),  Lord  Kenyon  had  expressly  laid  down  a  diiTerent  rule  in  Hide 
.'.  Troprietors,  etc.  1  Esp.  K.  IU'k     He  said,  "Tiicre  is  a  difference 
wliere  a  man  is  chargeable  fti/  low  generally,  and  where  on  his  roti- 
trurt.     Where  a  man  is  bound  to  any  duty  and  chargeable  to  a  certain 
fxt<-nt  by  t/ir  o/>rrntion  of  law,  in  such  case,  lie  cannot  by  nvy  ad  of 
hi*  own  dlHeharge  himself."     And  he  put  the  ca-se  of  common  car- 
ricrtJ,  and  «aid,  they  cannot  jlischargc  themselves  "by  niiy  act  of 


LIMITATION   OF   LIABILITY.  179 

their  own,  as  by  giving  notice,  for  example,  to  that  effect."  This 
case  was  afterwards  before  the  K.  B.,  but  on  another  point  (1  T.  K. 
389). 

The  doctrine  in  question  was  not  received  in  Westminster  Hall 
without  much  doubt;  and  although  it  ultimately  obtained  something 
like  a  firm  footing,  many  of  the  English  judges  have  expressed  their 
regret  that  it  was  ever  sanctioned  by  the  courts.  Departing  as  it 
did  from  the  simplicity  and  certainty  of  the  common-law  rule,  it 
proved  one  of  the  most  fruitful  sources  of  legal  controversy  which 
has  existed  in  modern  times.  When  it  Avas  once  settled  that  a 
carrier  might  restrict  his  liability  by  a  notice  brought  home  to  his 
employer,  a  multitude  of  questions  sprung  up  in  the  courts  which  no 
human  foresight  could  have  anticipated.  Each  carrier  adopted  such 
a  form  of  notice  as  he  thought  best  calculated  to  shield  himself  from 
responsibility  without  the  loss  of  employment;  and  the  legal  effect 
of  each  particular  form  of  notice  could  only  be  settled  by  judicial 
decision.  Whether  one  who  had  given  notice  that  he  would  not  be 
answerable  for  goods  beyond  a  certain  value  unless  specially  entered 
and  paid  for,  was  liable  in  case  of  loss  to  the  extent  of  the  value 
mentioned  in  the  notice,  or  was  discharged  altogether;  whether, 
notwithstanding  the  notice,  he  was  liable  for  a  loss  by  negligence, 
and  if  so,  what  degree  of  negligence  would  charge  him ;  what  should 
be  sufficient  evidence  that  the  notice  came  to  the  knowledge  of  the 
employer,  whether  it  should  be  left  to  the  jury  to  presume  that  he 
saw  it  in  a  newspaper  which  he  was  accustomed  to  read,  or  observed 
it  posted  up  in  the  office  where  the  carrier  transacted  his  business ; 
and  then  whether  it  was  painted  in  large  or  small  letters,  and 
whether  the  owner  went  himself  or  sent  his  servant  with  the  goods, 
and  whether  the  servant  could  read,  — these  and  many  other  ques- 
tions were  debated  in  the  courts,  while  the  public  suffered  an  almost 
incalculable  injury  in  consequence  of  the  doubt  and  uncertainty 
which  hung  over  this  important  branch  of  the  law.  See  1  Bell's 
Com.  474.  After  years  of  litigation,  parliament  interfered  in  1830 
and  relieved  both  the  courts  and  the  public,  by  substantially  re- 
asserting the  rule  of  the  common  law.     Stat.  1  Wm.  4,  c.  68. 

Without  going  into  a  particular  examination  of  the  English  cases, 
it  is  sufficient  to  say  that  the  question  has  generally  been  presented, 
on  a  notice  by  the  carrier  that  he  would  not  be  responsible  for  any 
loss  beyond  a  certain  sum,  unless  the  goods  were  specially  entered 
and  paid  for;  and  the  decisions  have  for  the  most  part  only  gone  far 
enough  to  say  that  if  the  owner  do  not  comply  with  the  notice  by 
stating  the  true  value  of  the  goods  and  having  them  properly 
entered,  the  carrier  will  be  discharged.  In  these  cases,  the  carrier 
had  not  attempted  to  exclude  all  responsibility.  But  there  are  two 
nisi  prills  decisions  which  allow  the  carrier  to  cast  off  all  liability 
whatever.  In  Having  v.  Todd,  1  Stark.  E.  72,  the  defendant  had 
given  notice  that  he  would  not  answer  for  a  loss  by  fire,  and  such  a 


ISO  CARRIERS   OF   GOODS. 

loss  having  occurred,  Lord  Elleuborough  thought  that  carriers  might 
exclude  their  liability  altogether,  aud  nonsuited  the  plaintiff.  In 
Leeson  c  Holt,  1  Stark.  K.  186,  tried  in  1816,  he  made  a  like 
decision;  though  he  very  justly  remarked,  that  "if  this  action  had 
been  brought  twenty  years  ago,  the  defendant  would  have  been 
liable;  since  by  the  common  law  a  carrier  is  liable  in  all  cases  except 
two."  We  have  here,  what  will  be  found  in  many  of  the  cases,  a 
very  distinct  admission  that  the  courts  had  departed  from  the  law 
of  the  land,  and  allowed  what  Jeremy's  Treatise  on  Carriers,  35,  6, 
very  properly  terms  "recent  innovations." 

Some  of  the  cases  which  have  arisen  under  a  general  notice  have 
proceeded  on  the  ground  of  fraud  (Batson  v.  Donovan,  4  B.  &  Aid. 
21) ;  others  on  the  notion  of  a  special  acceptance  or  special  contract 
(Nicholson  v.  Willan,  5  East,  507;  Harris  r.  Packwood,  3  Taunt. 
271  [164]);  while  in  some  instances  it  is  difficult  to  say  what  general 
principle  the  court  intended  to  establish. 

So  far  as  the  cases  have  proceeded  on  the  ground  of  fraud,  and 
can  properly  be  referred  to  that  head,  they  rest  on  a  solid  founda- 
tion; for  the  common  law  abhors  fraud,  and  will  not  fail  to  over- 
throw it  in  all  the  forms,  whether  new  or  old,  in  which  it  may  be 
manifested.  As  the  carrier  incurs  a  heavy  responsibility,  he  has  a 
right  to  demand  from  the  employer  such  information  as  will  enable 
him  to  decide  on  the  proper  amount  of  compensation  for  his  services 
and  risk,  and  the  degree  of  care  which  he  ought  to  bestow  in  dis- 
charging his  trust;  and  if  the  owner  give  an  answer  which  is  false 
in  a  material  point,  the  carrier  will  be  absolved  from  the  conse- 
quences of  any  loss  not  occasioned  by  negligence  or  misconduct. 
The  case  of  Kenrig  v.  Eggleston,  Aleyn,  93,  was  decided  in  1610. 
The  plaintiff  delivered  a  box  to  the  porter  of  the  carrier,  saying, 
'* there  was  a  book  and  tobacco  in  the  box,"  when  in  truth  it  con- 
tained £100  in  money,  besides.  Roll,  J.,  thought  the  carrier  was 
nevertheless  liable  for  a  loss  by  robbery;  "but  in  respect  of  the 
intended  cheat  to  the  carrier,  he  t«dd  the  jury  they  miglit  consider 
him  in  damages."  The  jviry,  however,  found  the  whole  sum  (abat- 
ing the  carriage)  for  the  j)laintifF,  f/uod  dnruin  vidchatur  cirnnnstan- 
films.  In  Gibbon  y.  I'aynton,  4  Burr.  2208  [160],  Lord  Mansfield 
said,  this  was  a  case  of  fraud,  and  he  "should  have  agreed  in  opinion 
with  the  cir  runt  stantibus.''  In  Tyly  r.  Morriee,  Carth.  185,  two 
b.ig8  of  money  sealed  up  were  delivered  to  the  carrier,  saying  they 
contained  .€200,  and  he  gave  a  receipt  for  the  money.  In  trutii  the 
bags  contained  £450,  and  tlie  carrier,  having  been  robbed,  i)aid  the 
.£200;  and  in  this  aetion  brought  to  recover  the  l)alanee,  tlie  Chief 
Ju.stice  told  the  jury  that  "since  the  i>laintitTs  liad  taken  this  course 
to  defraud  the  carrier  of  his  reward,  they  should  <ind  for  the  defend- 
ant." And  the  same  point  was  decided  in  another  action  against 
the  Hame  carrier.  In  fiibbon  v.  I'aynton,  }  lUirr.  22l)S  [160],  £100 
in  money  wa«  hid  in  hay  in  an  old  nail-l)ag,  whicli  fact  the  jilaintiff 


LIMITATION   OF   LIABILITY.  181 

concealed  from  the  carrier;  and  the  money  having  been  stolen,  the 
court  held  that  this  fraud  would  discharge  the  defendant.  In  the 
case  of  the  Orange  Co.  Bank  v.  Brown,  9  Wendell,  S5  [34], 
the  agent  of  the  plaintiff's  put  ^11,000  in  bank  bills  in  his  trunk, 
and  delivered  it  to  the  captain  of  the  steamboat  as  his  harjfjage.  The 
court  held  that  the  term  baggage  would  only  include  money  for  the 
expenses  of  travelling,  and  not  a  large  sum,  as  in  this  case,  taken 
for  the  mere  purpose  of  transportation;  and  it  was  said  that  the 
conduct  of  the  plaintiff's  agent  was  a  virtual  concealment  as  to  the 
money,  that  "his  representation  of  his  trunk  and  the  contents  as 
baggage  was  not  a  fair  one,  and  was  calculated  to  deceive  the  cap- 
tain." The  owner  is  not  bound  to  disclose  the  nature  or  value  of 
the  goods ;  but  if  he  is  inquired  of  by  the  carrier,  he  must  answer 
truly.     Phillips  v.  Earle,  8  Pick.  182. 

Fraud  cannot,  I  think,  be  imputed  to  the  owner,  from  the  mere 
fact  that  he  delivers  goods  after  having  seen  a  general  notice  jiub- 
lished  by  the  earrier,  whatever  may  be  its  purport.  If  the  carrier 
wishes  to  ascertain  the  extent  of  his  risk,  he  should  inquire  at  the 
time  the  goods  are  delivered;  and  then  if  he  is  not  answered  trulv, 
he  will  have  a  defence.  See  4  Bing.  218.  A  different  rule  prac- 
tically changes  the  burden  of  proof.  At  the  common  law  it  is 
enough  that  the  owner  prove  the  undertaking  of  the  carrier,  and 
that  the  goods  did  not  reach  their  destination.  But  this  doctrine  of 
implying  fraud  from  a  notice  requires  him  to  go  further,  and  show 
that  he  complied  with  the  terms  of  the  advertisement.  He  may 
have  informed  the  carrier  truly  of  the  value  of  the  goods :  there  may 
be  no  fraud,  but  still  he  is  required  to  prove  himself  innocent  before 
he  can  recover.  Independent  of  a  notice,  the  onus  would  rest 
where,  upon  general  principles,  it  ought  to  rest,  on  him  who  imputes 
fraud;  and  the  carrier  could  not  discharge  himself  without  showing 
some  actual  misrepresentation  or  fraudulent  concealment.  It  does 
not  lie  on  the  employer  to  show  how  the  loss  was  occasioned,  or 
that  he  has  acted  properly ;  but  the  law  presumes  against  the  carrier, 
until  he  proves  that  the  loss  happened  by  means  or  under  circum- 
stances for  which  he  is  not  answerable.  1  T.  R.  33;  Murphy  v. 
Staton,  3  Munf.  (Va.)  239;  Story  on  Bail.  338. 

But  it  is  enough  for  this  case,  that  the  question  of  fraud  can  never 
arise  under  such  notice  as  was  given  by  the  defendant.  He  did  not 
say  to  the  public  that  he  would  not  be  answerable  for  baggage 
beyond  a  certain  sum,  unless  the  owner  disclosed  the  value;  he  said 
he  would  not  be  answerable  in  any  event.  It  was,  in  effect,  a  notice 
that  he  would  not  abide  the  liabilities  which  the  law,  upon  prin- 
ciples of  public  policy,  had  attached  to  his  employment.  If  the 
notice  can  aid  the  defendant  in  any  form,  it  certainly  does  not  go  to 
the  question  of  fraud. 

The  only  remaining  ground  of  argument  in  favor  of  the  carrier 
is,  that  a  special  contract  may  be  inferred  from  the  notice.     Inde- 


1S2  CARRIERS   OF   GOODS. 

pendent  of  the  modern  English  cases,  it  seems  never  to  have  been 
directly  adjudged  that  the  liability  of  the  carrier  can  be  restricted 
by  a  special  contract.  Noy  (Maxims),  02,  after  speaking  of  a  loss 
by  negligence,  says:  "If  a  carrier  would  refuse  to  carry,  unless  a 
promise  were  made  to  him  that  he  should  not  be  charged  with  any 
such  miscarriage,  that  promise  were  void."  If  he  cannot  sti}iulate 
for  a  partial,  it  is  ditticult  to  see  how  he  can  for  a  total,  exemption 
from  liability.  In  Nicholson  v.  "Willan,  5  East,  513,  Lord  Ellen- 
borough  found  no  direct  adjudication  in  favor  of  the  position  that  a 
carrier  may  limit  his  responsibility  by  a  special  contract;  but  he 
relied  on  the  fact  that  such  an  exemption  had  never  been  "  by 
express  decision  denied."  Although  this  mode  of  reasoning  is  not 
the  most  conclusive,  I  shall  not  deny  that  the  carrier  may,  by 
express  contract,  restrict  his  liability;  for,  though  the  point  has 
never  been  expressly  adjudged,  it  has  often  been  assumed  as  good 
law.  Aleyn,  93;  4  Co.  84,  note  to  Southcote's  case;  4  Burr.  2301, 
per  Yates,  J.,  1  Vent.  190,  238;  Peake,  X.  P.  Cas.  150;  2  Taunt. 
271;  1  Stark.  R.  186.  If  the  doctrine  be  well  founded,  it  must,  I 
think,  proceed  on  the  ground  that  the  person  intrusted  with  the 
goods,  although  he  usually  exercises  that  employment,  does  not  in 
the  particular  case  act  as  a  common  carrier.  Tlie  parties  agree  that 
in  relation  to  that  transaction  he  shall  throw  off  his  public  character, 
and,  like  other  bailees  for  hire,  only  be  answerable  for  negligence 
or  misconduct.  If  he  act  as  a  carrier,  it  is  difficult  to  understand 
how  he  can  make  a  valid  contract  to  be  discharged  from  a  duty  or 
liability  imposed  upon  him  by  law. 

But,  conceding  that  there  may  be  a  special  contract  for  restricted 
liability,  such  a  contract  cannot,  I  think,  be  inferred  from  a  general 
notice  brought  home  to  the  employer.  The  argument  is.  that  where 
a  party  delivers  goods  to  be  carried  after  seeing  a  ncitice  that  the 
carrier  intends  to  limit  his  responsibility,  his  assent  to  the  terms  of 
the  notice  may  be  implied.  But  this  argument  entirely  overlooks  a 
very  important  consideration.  Notwithstanding  the  notice,  the 
owner  has  a  right  to  insist  that  tlie  carrier  sliall  rt-ceive  the  goods 
subject  to  all  the  responsibilities  incident  to  his  emi)loyment.  If 
the  delivery  of  goods  under  such  circumstances  authorizes  an  impli- 
cation of  any  kind,  the  i)resumption  is  as  strong,  to  say  the  least, 
that  tlie  owner  intonded  to  insist  on  his  legal  rights,  as  it  is  that  he 
was  willing  to  yioM  to  the  wishes  of  the  carrier.  If  a  coat  be 
ordered  from  a  mechanic  after  he  has  given  the  customer  notice  that 
he  will  not  furnish  the  article  at  a  less  price  than  one  huiulred 
dollars,  the  assent  of  the  customer  to  ])ay  that  sum,  though  it  be 
double  tlie  value,  may  p(!rlia[)s  be  implied;  but  if  tlie  mechanic  had 
been  under  a  legal  ol)ligation  not  only  to  furnisli  tlie  coat,  l)nt  to  do 
80  at  a  reasonable  price,  no  such  implication  could  arise.  Now  the 
carrier  is  under  a  legal  obligation  to  receive  and  convey  the  goods 
safely,  or  answer  for  the  los■^.      ll"-   has   no  right  to  i)rescril»e  any 


LIMITATION    OF   LIABILITY.  183 

other  terms ;  and  a  notice  can  at  the  most  only  amount  to  a  proposal 
for  a  special  contract,  which  requires  the  assent  of  the  other  party. 
Putting  the  matter  in  the  most  favorable  light  for  the  carrier,  the 
mere  delivery  of  goods  after  seeing  a  notice  cannot  warrant  a  stronger 
presumption  that  the  owner  intended  to  assent  to  a  restricted  liabil- 
ity on  the  part  of  the  carrier,  than  it  does  that  he  intended  to  insist 
on  the  liabilities  imposed  by  law;  and  a  special  contract  cannot  be 
implied  where  there  is  such  an  equipoise  of  probabilities. 

Making  a  notice  the  foundation  for  presuming  a  special  contract, 
is.  subject  to  a  further  objection.  It  changes  the  burden  of  proof. 
Independent  of  the  notice,  it  would  be  sufficient  for  the  owner  to 
prove  the  delivery  and  loss  of  the  goods;  and  it  would  then  lie  on 
the  carrier  to  discharge  himself  by  showing  a  special  contract  for  a 
restricted  liability.  But  giving  effect  to  the  notice  makes  it  neces- 
sary for  the  owner  to  go  beyond  the  delivery  and  loss  of  the  goods, 
and  prove  that  he  did  not  assent  to  the  proposal  for  a  limited 
responsibility.  Instead  of  leaving  the  onus  of  showing  assent  on 
him  who  sets  iip  that  affirmative  fact,  it  is  thrown  upon  the  other  - 
party,  and  he  is  required  to  prove  a  negative,  that  he  did  not 
assent. 

After  all  that  has  been  or  can  be  said  in  defence  of  these  notices, 
whether  regarded  either  as  a  ground  for  presuming  fraud  or  imply- 
ing a  special  agreement,  it  is  impossible  to  disguise  the  fact  that 
they  are  a  mere  contrivance  to  avoid  the  liability  which  the  law  has 
attached  to  the  employment  of  the  carrier.  If  the  law  is  too  rigid, 
it  should  be  modified  by  the  legislature,  and  not  by  the  courts.  It 
has  been  admitted  over  and  over  again  by  the  most  eminent  English 
judges,  that  the  effect  given  to  these  notices  was  a  departure  from 
the  common  law;  and  they  have  often  regretted  their  inability  to 
get  back  again  to  that  firm  foundation.  The  doctrine  that  a  carrier 
may  limit  his  responsibility  by  a  notice  was  wholly  unknown  to 
the  common  law  at  the  time  of  our  revolution.  It  has  never  been 
received  in  this,  nor,  so  far  as  I  have  observed,  in  any  of  the  other 
States.  The  point  has  been  raised,  but  not  directly  decided.  Barney 
V.  Prentiss,  4  Har.  &  Johns.  R.  317;  Dwight  v.  Brewster,  1  Pick. 
50  [16].  Should  it  now  be  received  among  us,  it  will  be  after  it 
has  been  tried,  condemned,  and  abandoned  in  that  country  to  which 
we  have  been  accustomed  to  look  for  light  on  questions  of  juris- 
prudence. 

The  Act  of  Parliament  already  mentioned  enumerates  various 
articles  of  great  value  in  proportion  to  the  bulk,  and  others  which 
are  peculiarly  exposed  to  damage  in  transportation,  and  declares 
that  the  carrier  shall  not  be  liable  for  the  loss  or  injury  of  those 
articles  when  the  value  exceeds  £10,  unless  at  the  time  of  delivery 
the  owner  shall  declare  the  nature  and  value  of  the  property,  and 
pay  the  increased  charge  which  the  carrier  is  allowed  to  make  for 
his  risk  and  care.     If  the  owner  complies  with  this  requirement, 


184  CAKKIEKS    OF    GOODS. 

the  carrier  must  give  him  a  receipt  for  the  goods,  ''acknowledging 
the  same  to  have  been  insureii,"  and  if  he  refuse  to  give  the  receipt, 
he  remains  "liable  and  responsible  as  at  the  covimon  latr.''  The 
provision  extends  to  the  proprietors  of  stagecoaches  as  well  as  all 
other  carriers,  and  to  property  which  may  "accompany  the  person 
of  any  passenger,"  as  well  as  other  goods;  and  the  statute  declares 
that  after  the  tirst  day  of  September,  1830,  ^^  no  public  notice  or  decla- 
ration heretofore  made,  or  hereafter  to  be  made,  shall  be  deemed 
or  construed  to  limit,  or  in  any  wise  affect  the  liability  at  common  law  " 
of  any  carriers;  but  that  all  and  every  such  carrier  shall  be  "liable 
as  at  the  common  law  to  answer"  for  the  loss  or  injury  of  the  prop- 
erty, "««y  j/iiblic  notice  or  declaration  by  them  made  and  given 
contrary  thereto,  or  in  any  wise  limiting  such  liability,  notwith- 
standing." The  only  moditication  of  the  common-law  rule  in  rela- 
tion to  carriers  made  by  this  statute,  is  that  which  requires  the 
owner,  without  a  special  request,  to  disclose  the  nature  and  value  of 
the  package,  when  it  contains  articles  of  a  particular  description. 
The  premium  for  care  and  risk,  the  carrier  might  have  required 
before.  In  relation  to  all  articles  not  enumerated,  and  in  relation 
to  those  also,  if  the  owner  comply  with  the  requirements  of  the  act, 
the  carrier  is  declared  liable  as  an  insurer,  and  must  answer  '^as 
at  the  common  law.'"  The  whole  doctrine  which  had  sprung  up 
under  notices  is  cut  up  by  the  roots,  and  in  such  language  as 
renders  it  apparent  that  the  legislature  deemed  it  an  innovation  on 
the  law  of  the  land. 

If  after  a  trial  of  thirty  years  the  i)eople  of  Great  Britain,  whose 
interests  and  pursuits  are  not  very  dissimilar  to  our  own,  have  con- 
demned the  whole  doctrine  of  limiting  the  carrier's  liability  by  a 
notice;  if  after  a  long  course  of  legal  controversy  they  have  retraced 
their  steps,  and  returned  to  the  simplicity  and  certainty  of  the  com- 
mon-law rule, — we  surely  ought  to  profit  by  their  exjjerience,  and 
should  hesitate  long  before  we  sanction  a  jnactice  which  not  only 
leads  to  douV>t  and  uncertainty  concerning  the  rights  and  duties  of 
the  parties,  but  which  encourages  negligence,  and  opens  a  wide  door 
to  fraud. 

If  the  policy  of  the  law  in  relation  to  carriers  were  more  ques- 
tionable than  I  think  it  is,  it  would  be  the  business  of  the  legis- 
lature, and  not  of  the  courts,  to  apply  the  proper  remedy.  The 
phiintiff  is  f-ntitled  to  judgment  in  pursuance  of  the  stipulation  con- 
tained in  the  case' 

'  A  lengthy  opinion  by  Cowon,  J.,  on  the  same  rjucstion  waa  rendered  at  the  same 
t«mi  in  Colo  v.  Goodwin,  lU  Wend.  '251. 


LIMITATION    OF   LIABILITY.  185 

JUDSON  V.   WESTERN  R.   CO. 
6  Allen  (Mass.),  486.    1863. 

CoxTRACT  in  which  the  plaintiff  seeks  to  charge  the  defendants  as 
common  carriers,  for  the  loss  of  a  quantity  of  dressed  deer-skins, 
which  were  in  the  defendants'  freight  depot  at  East  Albany  on  the 
evening  of  the  5th  of  July,  18G1,  when  it  with  all  its  contents  was 
destroyed  by  an  accidental  tire. 

At  the  second  trial  in  the  Superior  Court,  before  Putnam,  J.,  after 
the  decision  reported  in  4  Allen,  520,  there  was  evidence  tending  to 
show,  and  it  was  found  by  the  jury,  that  on  the  afternoon  of  the  5th 
of  July,  1861,  two  boxes,  marked  "G.  C.  Judson,  Springfield, 
Mass.,  by  railroad,"  were  delivered  by  the  New  York  Central  Hail- 
road  Company  to  the  defendants  at  East  Albany,  for  immediate 
transportation,  with  the  necessary  vouchers  and  expense  bills ;  and 
it  further  appeared  that  the  defendants  have  for  the  past  ten  years 
issued  freight  tariffs,  which  were  in  force  in  July,  1861,  containing 
among  other  provisions  the  following:  "No  risk  assumed  beyond 
$200  on  any  one  package  except  by  special  agreement.  All  goods 
and  merchandise  will  be  at  the  risk  of  the  owners  while  in  the  cor- 
poration's storehouses,  and  no  responsibility  will  be  admitted  for 
any  loss  or  injury  except  such  as  may  arise  by  fire  from  the  loco- 
motive engines,  or  by  negligence  of  the  agents  of  the  corporation; 
nor  for  a  greater  amount  than  $200  on  any  one  package,  except  by 
special  agreement."  These  tariffs  were  posted  in  all  the  freight- 
houses  of  the  corporation,  and  liberally  distributed  to  the  public, 
and,  before  the  5th  of  July,  1861,  a  large  number  of  these  freight 
tariffs  were  delivered  by  the  defendants  to  the  freight  agents  of  the 
New  York  Central  Railroad  Company  at  Albany.  A  notice  similar 
to  that  contained  in  the  freight  tariffs  was,  and  for  many  years  had 
been,  inserted  in  the  printed  receipts  given  for  goods  delivered  at 
the  several  stations  of  the  defendants  for  transportation,  but  the 
defendants  did  not  propose  to  bring  these  notices  home  to  the  plain- 
tiff in  any  other  way  than  as  above  stated;  and  the  plaintiff  himself 
testified  that  he  had  never  seen  them,  and  was  ignorant  of  their 
existence. 

The  New  York  Central  Railroad  Company  received  the  boxes 
from  the  plaintiff's  agent,  at  Fonda,  in  the  State  of  New  York,  and 
gave  for  them  a  shipping  receipt  which  contained  the  following 
stipulation,  amongst  others:  "Goods  or  property  consigned  to  any 
place  off  the  company's  line  of  road,  or  to  any  point  or  place  beyond 
its  termini,  will  be  sent  forward  with  as  reasonable  despatch  as  the 
general  business  of  the  corporation  at  its  warehouse  within  men- 
tioned will  admit,  by  a  carrier  or  freight  man,  when  there  are  such 


1S6  CARRIERS   OF   GOODS. 

known  to  the  station  agent  at  said  warehouse  willing  to  receive  the 
same,  unconditionally,  for  transportation,  the  company  acting,  tor 
the  purpose  of  delivery  to  such  carrier  or  freight  man,  as  the  agents 
of  the  consignor  or  consignee,  and  not  as  carriers." 

The  defendants  requested  the  court  to  instruct  the  jury  that  the 
limitations  and  conditions  contained  in  their  tariii"  and  iieight 
receipts,  brought  home  to  the  knowledge  of  the  agents  of  the  New 
York  Central  Railroad  Company  as  above  stated,  would  exemjit 
them  from  all  liability  for  the  loss  of  the  goods,  or  in  any  event 
would  exempt  them  from  liability  beyond  $200  on  each  parcel.  The 
judge  declined  so  to  rule. 

The  jury  returned  a  verdict  for  the  plaintiff,  with  $!1020.93 
damages,  and  the  case  was  reported  for  the  consideration  of  this 
court. 

BiGELOW,  C.  J.  It  would  not  be  profitable  to  enter  u})on  a  cita- 
tion and  discussion  of  the  numerous  and  conflicting  cases  bearing 
on  the  question  of  the  rights  of  a  common  carrier,  by  a  general  notice, 
to  absolve  himself  entirely  from  his  common-law  liability  for  property 
intrusted  to  his  care,  or  to  modify  and  limit  his  responsibility  by  a 
mere  constructive  notice  to  those  who  may  have  occasion  to  place 
goods,  wares,  and  merchandise  in  his  keeping  for  the  purpose  of 
transportation.  A  careful  examination  of  the  authorities  would  not 
lead  to  any  very  satisfactory  result,  or  throw  much  light  on  the  real 
principles  on  which  the  respective  rights  and  duties  of  carriers  and 
the  public  mainly  dejiend.  A  very  full  and  clear  statement  of  the 
results  arrived  at  in  tlie  leading  cases  on  the  subject  can  be  found 
in  the  elementary  writers,  especially  in  Redfield  on  Railways,  2G4; 
Angell  on  Carriers,  §§  232-245;  1  Parsons  on  Con.  707. 

Th<Te  is,  however,  one  conclusion  which  is  fully  suppt)rted  by  the 
weight  of  authority  in  the  American  courts,  confcrning  whicli  no 
serious  doubt  can  be  entertained;  that  is,  tliat  a  public  carrier  may 
enter  into  a  special  contract  with  his  employer  by  wliirh  he  may 
stipulate  for  a  partial  or  entire  exoneration  from  liis  liability  at 
common  law  as  an  insurer  of  prr»perty  committed  to  his  custody,  and 
tliat  such  contract  is  not  contrary  to  pul)lic  ])o]icy,  or  invalid  as 
transcending  the  just  limits  of  the  right  of  jtarties  to  regulate  their 
dealings  by  special  stipulations.  As  a  necessary  corollary  of  this 
conclusion,  it  is  also  held  in  the  best-considered  cases  and  liy  the 
most  approved  text-writers,  that  a  notice  by  a  carrier  that  lie  will 
not  assume  the  ordinary  responsil)iliti('S  imjiosed  on  liim  liy  law,  if 
brought  home  to  the  owner  of  goods  delivered  for  transportation, 
and  assented  to  clearly  and  unequivocally  by  him,  will  be  binding 
and  obligatory  upon  him,  because  it  is  tantamount  to  an  exjiress 
Contract  tliat  the  goods  shall  be  carried  ftn  the  terms  s])ecilie(l  in 
Kuch  notice.  To  tliis  extent,  the  doctrine  that  a  carrier  may  limit 
or  modify  his  liability  seems  to  be  most  just  and  reasonable.  Inas- 
much as  the  rule  of  law  which  holds  a  carrier  to  the  rcsjionsibility 


LIMITATION   OF   LIABILITY.  187 

of  an  insurer,  except  in  certain  special  cases,  is  founded  in  a  policy 
•which  is  designed  solely  for  the  security  and  benefit  of  the  owner  of 
goods,  there  can  be  no  sufficient  reason  for  regarding  the  rule  as 
absolutely  inflexible  or  irrepealable,  when  the  party,  in  whose  favor 
it  will  operate,  directly  or  by  necessary  implication  consents  to 
waive  it,  or  agrees  to  an  essential  modification  of  his  own  rights 
under  it. 

But  it  is  a  very  different  proposition  to  assert  that  a  common  car- 
rier may  escape  his  legal  liability  or  materially  change  it  by  a  general 
notice  to  all  persons  that  he  will  not  be  responsible  for  the  loss  or 
injury  of  property  intrusted  to  his  custody,  or  only  liable  therefor 
under  such  conditions  and  limitations  as  he  may  think  proper  to 
impose.  A  common  carrier  is  in  a  certain  sense  a  public  servant, 
exercising  an  employment  not  merely  for  his  own  emolument  and 
advantage,  but  for  the  convenience  and  accommodation  of  the  com- 
munity in  which  he  pursues  his  calling.  The  law  imposes  on  him 
certain  duties  and  responsibilities  different  from  and  greater  than 
those  which  attach  to  an  occupation  of  a  purely  private  nature,  in 
regard  to  the  conduct  of  which  the  public  have  no  interest,  and 
which  can  be  carried  on  at  the  option  or  according  to  the  pleasure  of 
the  person  who  is  engaged  in  it.  A  common  carrier  cannot  legally 
refuse  to  transport  property  of  a  kind  which  comes  within  the  class 
which  he  usually  carries  in  the  course  of  his  employment,  if  it  is 
tendered  to  him  at  a  suitable  time  and  place,  with  an  offer  of  a 
reasonable  compensation.  Like  an  innkeeper,  he  is  obliged  to 
exercise  his  calling  upon  due  request  under  proper  circumstances, 
and  is  liable  to  an  action  for  damages  if  he  wrongfully  refuses  to 
do  so.  A  legal  obligation  rests  upon  him  to  assume  the  duty  which 
he  holds  himself  out  as  ready  to  perform,  and  a  correlative  right 
belongs  to  the  owner  of  goods  to  ask  for  and  require  their  reception 
and  transportation  upon  the  terms  of  liability  fixed  and  defined  by 
the  established  rules  of  law.  The  carrier  has  not  the  option  to 
accept  or  refuse  the  carriage  of  the  goods  at  his  pleasure ;  but  the 
person  seeking  to  have  them  transported  can  choose  whether  they 
shall  be  carried  without  any  restriction  of  the  carrier's  duty  as 
prescribed  by  law,  or  whether  he  will  waive  a  portion  of  his  rights, 
and  consent  to  a  modification  of  the  legal  liability  which  attaches 
to  the  carrier.  Such  being  the  legal  relation  which  subsists  between 
a  common  carrier  and  his  employer,  it  certainly  would  be  inconsis- 
tent with  it  to  hold  that  a  carrier,  by  a  mere  notice  brought  home  to 
the  owner  of  goods  intrusted  to  his  care  that  he  did  not  intend  to 
assume  all  the  liabilities  of  his  calling,  could  escape  or  materially 
change  the  responsibility  which  the  law  annexes  to  the  contract  of 
the  parties.  It  would  in  effect  put  it  in  the  power  of  the  carrier  to 
abrogate  the  rules  of  law  by  which  the  exercise  of  his  employment 
is  regulated  and  governed.  Certainly  such  a  notice,  even  if  shown 
to  have  been  within  the  knowledge  of  the  owner  of  goods,  would,  in 


188  CARRIERS   OF   GOODS. 

the  absence  of  evidence  of  his  direct  assent  to  its  terms,  afford  no 
sufficient  ground  for  the  inference  that  he  had  voluntarily  agreed 
without  any  consideration  to  relinquish  and  give  up  the  valuable 
ri-;!it  of  having  his  goods  carried  at  the  risk  of  the  carrier.  On  the 
o'Uirary,  it  would  be  quite  as  reasonable  to  infer  under  such  circum- 
stances that  the  carrier  did  not  intend  to  rely  upon  a  notice  upon 
which  he  could  not  legally  insist,  as  that  the  owner  of  goods  meant 
to  surrender  a  right  to  which  he  was  entitled  by  law.  In  such  case, 
mere  silence  cannot  be  said  to  amount  to  acquiescence.  The  leading 
cases  in  the  American  courts  in  which  these  doctrines  have  been 
recognized  and  established  are  New  Jersey  Steam  Navigation  Co.  r. 
Merchants'  Bank,  C  How.  (U.  S.)  344;  Farmers'  &  :Mechanics'  Bank 
V.  Cliamplain  Transportation  Co.,  23  Verm.  ISO,  205;  Kimball  v. 
Kuthmd  &  Burlington  Railroad,  26  Verm.  247;  ^Moses  v.  Boston  & 
Maine  Kailroad,  4  Fost.  (N.  H.)  71.  See  also  the  recent  English 
case  of  Garton  v.  Bristol  &,  Exeter  Railway,  1  Best  &  Smith,  112, 
161. 

The  application  of  these  principles  to  the  present  case  is  decisive 
against  the  right  of  the  defendants  to  insist  on  the  instructions  for 
which  they  asked  at  the  trial.  It  is  not  contended  that  tlie  plaintiff 
had  any  actual  knowledge  of  the  notice  issued  by  the  defendants, 
containing  a  limitation  of  their  common-law  liability  as  carriers. 
If  lie  had  any  knowledge  at  all,  it  was  at  most  only  constructive, 
through  the  New  York  Central  Railroad  Company,  who  received 
the  goods  for  transmission  over  their  own  road,  to  be  delivered  to 
the  defendants  to  be  forwarded  over  a  portion  of  their  route.  There 
is  no  fact  in  the  case  from  which  any  assent  by  the  plaintiff  to  the 
t'^rms  of  tlie  notice  can  be  inferred.  One  portion  of  the  notice  on 
wliich  the  defendants  rely  goes  to  the  extent  of  repudiating  all  lia- 
bility for  the  loss  or  injury  of  goods  delivered  to  the  defendants  and 
in  process  of  transportation,  except  such  as  miglit  be  caused  by  fire 
from  the  locomotive  engines  or  by  the  negligence  of  the  agents  of 
the  corporation.  This  certainly  was  not  binding  on  the  jjlaintiff", 
P'qually  invalid  was  that  portion  of  the  notice  which  announced  that 
the  defendants  would  not  be  liable  for  a  greater  amount  than  two 
liundred  dollars  on  any  one  package,  except  by  special  agreement. 
This  was  equivahuit  to  a  notice  that  they  would  not  be  liable  for  a 
grf-ater  amount  tlian  twrj  hundred  dollars  on  a  single  package,  unless 
they  chose  to  assume  a  further  lial)ility.  It  was  optional  with  them, 
under  tliis  notice,  whether  they  would  make  any  such  agreement  or 
not.  If  they  refused  or  omitted  to  do  so,  the  owner  of  goods  had  no 
power  to  cf)mpel  them  to  enter  into  any  agreement.  Nor,  if  the 
notiee  of  itself  is  binding  on  him,  had  he  any  means  of  obtaining 
the  Hafe  tran.sportation  of  his  goods  by  the  defendants  above  the 
value  of  two  hundred  dollars,  under  the  liabilities  imposed  by  law 
UfKin  common  carriers. 

We  do  not  mean  to  say  that  a  general  notice  brought  home  to  an 


LIMITATION    OF   LIABILITY.  189 

owner  of  goods  may  not  be  available  to  qualify  and  limit  the  respon- 
sibility of  common  carriers  to  a  certain  extent  and  within  certain 
limits.  Doubtless  they  may  by  such  a  notice  require  that  informa- 
tion shall  be  given  to  them  of  the  nature  and  value  of  the  property 
which  they  are  required  to  carry,  in  order  that  they  may  exercise 
a  needful  degree  of  care  in  its  transportation,  and  may  ascertain 
and  demand  a  reasonable  sum  for  its  carriage.  So  they  may  give 
notice  that  property  above  a  certain  amount  in  value  will  not  be 
transported  for  ordinary  rates  of  freight,  but  that  the  price  for  its 
carriage  will  be  regulated  by  the  nature  of  the  articles  and  the 
aggregate  value  of  each  package.  In  like  manner  they  may  by  a 
general  notice  protect  themselves  against  liability  for  loss  or  injury 
of  merchandise,  unless  it  is  properly  packed  or  arranged  for  trans- 
portation, so  that  it  may  with  reasonable  diligence  and  care  be 
safely  and  securely  carried.  These  and  other  similar  notices  would 
be  reasonable  and  perfectly  consistent  with  the  nature  of  the  employ- 
ment of  a  common  carrier,  and  the  rules  of  law  by  which  it  is  regu- 
lated, and  they  would  be  valid  and  binding  on  all  to  whom  they 
were  brought  home,  without  any  express  assent.  All  that  we  mean 
to  decide  is,  that  a  common  carrier  cannot  by  a  general  notice  exon- 
erate himself  entirely  from  his  legal  liability,  nor  limit  it  absolutely 
to  a  certain  amount  beyond  which  he  will  not  be  held  responsible  in 
case  of  injury  or  loss.  This  was  the  legal  effect  of  the  notice  on 
which  the  defendants  rely  in  the  present  case,  as  is  admitted  by 
their  counsel,  who  puts  his  defence  to  this  action  on  the  ground  that 
they  are  not  liable  at  all,  or  only  for  the  sum  of  two  hundred  dollars 
on  each  package.  Such  a  notice,  being  invalid,  was  not  binding 
on  the  plaintiff,  and  he  is  therefore  entitled  to 

Judgvient  on  the  verdict. 


BOON   V.    STEAMBOAT   BELFAST. 
40  Ala.  184.     1866. 

Appellants  filed  a  libel  in  admiralty  against  the  steamboat  "  Bel- 
fast" to  recover  the  value  of  some  cotton  which  they  shipped  on  this 
boat  at  Columbus  to  be  transported  to  Mobile,  and  which  was  never 
delivered.  The  owners  of  the  boat  intervened,  and  in  their  answer 
alleged  that  while  the  boat  was  proceeding  down  the  river,  it  was 
forcibly  boarded  and  seized  by  a  body  of  armed  men,  and  without 
any  fault  on  the  part  of  the  officers  and  crew,  and  that  the  cotton 
was  thereby  lost.     The  remaining  facts  appear  from  the  opinion. 

Judge,  J.  The  respondents,  in  their  answer  to  the  libel,  made  the 
following  averment,  in  substance,  as  one  of  their  grounds  of  defence  : 
"That  it  is  the  universal  practice  and  understanding  amongst  all 
persons  navigating  the  waters  of  the  Tombigbee  River,  and  of  all 


190  CARRIERS   OP   GOODS. 

persons  shipping  cotton  to  Mobile  on  said  river,  that  where  cotton  is 
received  on  board  of  a  steamboat  to  be  transported  to  Mobile,  if  the 
boat  is  captured  by  armed  men,  and  the  cotton  thereby  lost  to  the 
owner  or  owners,  without  any  fault  or  neglect  of  the  officers  or  crew 
of  the  boat,  neither  the  boat  nor  the  owners  of  the  boat  are  liable 
for  said  loss;  that  the  said  practice  and  understanding  is  general, 
and  universally  known  to  all  persons  navigating  said  river  to  ^lobile ; 
that  is,  that  said  custom  is  general,  universal,  and  uniform,  and 
known  to  all  persons  navigating  said  river,  and  all  persons  shipping 
cotton  upon  said  river;  that  said  custom  existed  at  the  time  of  the 
contract  of  shipment,  and  before  that  time,  and  was  known  to  all 
persons  who  were  engaged  in  shipping  cotton  on  said  river  to  ^lobile, 
and  to  all  persons  navigating  said  river.*' 

This  allegation  was  excepted  to  by  the  libellants  as  setting  up  a 
custom  in  direct  conflict  with  the  law,  and  as  being  no  bar  to  the 
libel.  The  court  overruled  the  exception,  and  on  the  trial  permitted 
parol  evidence  to  be  introduced  by  the  respondents  to  sustain  the 
allegation,  against  the  objection  of  libellants. 

The  bill  of  lading  was  in  the  usual  form.  It  acknowledged  the 
receipt  of  a  certain  number  of  bales  of  cotton  at  Vienna,  to  be 
delivered  at  Mobile,  ''dangers  of  the  river  excepted."  As  to  this 
cotton,  the  boat  and  its  owner  became  answerable  for  accidents  and 
thefts,  and  even  for  a  loss  by  robbery.  They  became  answerable  for 
all  losses  which  do  not  fall  within  the  excepted  cases  of  the  act  of 
God  and  public  enemies.  This,  as  Chancellor  Kent  remarks  in  his 
Commentaries,  "has  been  the  settled  law  of  England  forages;  and 
the  rule  is  intended  as  a  guard  against  fraud  and  collusion,  and  it  is 
founded  on  the  same  broad  principles  of  public  ])olicy  and  conven- 
ience which  govern  the  case  of  innkeepers."     2  Kent's  Com.  59S. 

"The  only  exception  expressed  in  the  contract  in  this  case  is 
*  dangers  of  the  river.*  Tlie  only  exceptions  imi)lied  by  law  are  the 
act  of  God  or  of  the  i)ublic  enemies."  Cox,  Brainard  &  Co.  v. 
l\'terson,  30  Ala.  G(»H. 

Whilst  in  all  contracts,  "as  to  the  subject-matter  of  which  known 
usages  prevail,  parties  are  found  to  proceed  with  the  tacit  assump- 
tion of  tliese  u.sages,"  and  wliilst  "parol  evidence  of  custom  and 
usage  is  always  admissible  to  enable  us  to  arrive  at  the  real  meaning 
of  the  parties,  who  are  naturally  presumed  to  have  contracted  in 
conformity  with  the  known  and  established  usage,"  yet  "it  is  not 
admitted  to  contradict,  or  substantially  to  vary,  the  legal  import  of 
a  written  agreement.  The  usage  of  no  class  of  men  can  be  sus- 
tained in  ojjposition  to  the  established  itrineiplos  of  law."  Addison 
on  Contracts,  853;  Price  r.  White.  0  Ala.  :,(',:]-.  M.Clure  A:  Co.  r. 
Cox,  Hrainard  &  Co.,  32  id.  617. 

The  tnie  and  ai)i»ro])riate  office  of  a  usage  or  cii^idui  is  correctly 
Htat«-d  by  Judge  Story  in  the  ease  of  Sehooner  Iteesido.  2  Sum.  nn?. 
In  that  cjuie,  it  waa  attempted  to  vary  tlie  common  bill  of  lading, 


LIMITATION   OF   LIABILITY.  191 

by  which  goods  were  to  be  delivered  in  good  order  and  condition, 
"the  danger  of  the  seas  only  excepted,"  by  establishing  a  custom 
that  the  owners  of  packet  vessels  between  New  York  and  Boston 
should  be  liable  only  for  damages  to  goods  occasioned  by  their  own 
neglect.  In  delivering  the  opinion  of  the  court,  Judge  Story  said: 
*'  The  true  and  appropriate  office  of  a  usage  or  custom  is  to  interpret 
the  otherwise  indeterminate  intentions  of  parties,  and  to  ascertain 
the  nature  and  extent  of  their  contracts,  arising  not  from  express 
stipulations,  but  from  mere  implications  and  presumptions  and  acts 
of  a  doubtful  or  equivocal  character.  It  may  be  also  admitted  to 
ascertain  the  true  meaning  of  a  particular  word,  or  of  particular 
words,  in  a  given  instrument,  when  the  word  or  words  have  various 
senses,  some  common,  some  qualified,  and  some  technical,  according 
to  the  subject-matter  to  which  they  are  applied.  But  I  apprehend 
that  it  can  never  be  proper  to  resort  to  any  usage  or  custom  to  con- 
trol or  vary  the  positive  stipulations  in  a  written  contract,  and  a 
fortiori  not  in  order  to  contradict  them.  An  express  contract  of  the 
parties  is  always  admissible  to  supersede  or  vary  or  control  a  custom 
or  usage;  for  the  latter  may  always  be  waived  at  the  will  of  the 
parties.  But  a  written  and  express  contract  cannot  be  controlled  or 
varied  or  contradicted  by  a  usage  or  custom ;  for  that  would  not  only 
be  to  admit  parol  evidence  to  control,  vary,  or  contradict  written 
contracts,  but  it  would  be  to  allow  mere  presumptions  and  im])lica- 
tions,  properly  arising  in  the  absence  of  any  positive  expressions  of 
intention,  to  control,  vary,  or  contradict  the  most  formal  and  deliber- 
ate written  declarations  of  the  parties."  See  also  2  Parsons  on 
Contracts,  note  on  page  59,  and  authorities  there  cited;  Hone  v. 
Mutual  Safety  Ins.  Co.,  1  Sand.  137. 

"  It  may  be  difficult  to  draw  the  precise  line  of  distinction  between 
cases  in  which  evidence  of  usage  and  custom  ought  to  be  admitted, 
and  cases  in  which  it  ought  not  to  be  admitted."  Upon  this  ques- 
tion ,  "  much  confusion  and  inaccuracy  have  crept  into  the  adjudged 
cases,  so  that  any  attempt  to  reconcile  them  would  necessarily  prove 
abortive."  McClure  &  Co.  v.  Cox,  Brainard  &  Co.,  32  Ala.  617; 
Barlow  v.  Lambert,  28  id.  704.  But  we  think  it  clearly  settled  by 
the  decided  weight  of  authority  that  a  general  usage,  the  effect  of 
which  is  to  control  rules  of  law,  is  inadmissible;  and  that  the  clear 
and  explicit  language  of  a  contract  cannot  be  enlarged  or  restricted 
by  proof  of  a  custom  or  usage. 

The  decisions  of  this  court  upon  the  question  have  generally  been 
in  accordance  with  this  view.  Andrews  v.  Eoach  and  Caffey,  Z  Ala. 
590;  Price  v.  White,  9  id.  563;  West,  Oliver  &  Co.  v.  Ball,  12  id. 
340;  Ivey  v.  Phifer,  13  id.  821;  I'etty  r.  Gayle,  25  id.  472;  Barlow 
V.  Lambert,  28  id.  704;  Alabama  andTennessee  Rivers  R.  R.  Co.  v. 
Kidd,  29  id.  221;  Smith  v.  Mobile  Kav.  Ins.  Co.,  .30  id.  167;  Cox, 
Brainerd  &  Co.  v.  Peterson,  30  id.  608;  McClure  «fe  Co.  v.  Cox, 
Brainard  &  Co.,  32  id.  617;  Jones  v.  Fort,  36  id.  422. 


192  CARRIERS   OF   GOODS. 

The  decision  in  Steele  v.  McTyei's  Adm'r,  31  Ala.  G77,  lays  down 
a  contrary  principle;  and  so  much  of  tliat  decision  as  holds  that 
parol  evidence  is  admissible  to  show  that  by  a  custom  existing  on  a 
particular  river  flatboatnien  were  not  responsible  for  a  loss  caused 
by  dangers  of  the  river,  although  the  bill  of  lading  contained  no 
such  exception,  being  in  opposition  to  the  principle  announced  in 
this  opinion  on  that  question,  is  overruled. 

In  Sampson  v.  Gazzam,  6  Port.  123,  it  was  held  to  be  permissible 
for  the  owner  of  a  steamboat,  when  sued  for  the  loss  of  goods  by 
fire,  to  show  by  parol  that  the  exceptive  words  "dangers  of  the 
river,"  in  a  bill  of  lading,  by  custom  and  usage,  includes  dangers  by 
fire.  This  decision  has  been  so  often  recognized  and  followed  by 
this  court  in  cases  involving  the  identical  question  that  the  principle 
established  by  it  must  now  be  regarded  as  tlie  settled  law  of  the 
State  in  its  application  only  to  cases  of  the  particular  class  to  which 
it  specially  rehiti-s ;  we  are  unwilling  to  extend  its  application  beyond 
this  limit.     See  Hibler  v.  McCartney,  31  Ala.  501. 

The  rule  which  makes  the  common  carrier  in  the  nature  of  an 
insurer,  and  answerable  for  every  loss  not  attributable  to  the  act  of 
God  or  the  public  enemies,  according  to  Lord  Holt,  "was  a  politic 
establishment,  contrived  by  the  policy  of  the  law  for  the  safety  of 
all  persons  the  necessity  of  whose  affairs  obliged  them  to  trust  those 
sorts  of  persons;"  "it  was  introduced  to  prevent  the  necessity  of 
going  into  circumstances  impossible  to  be  unravelled."  "If  it  were 
not  for  such  a  rule,  the  common  carrier  might  contrive  by  means  nut 
to  be  detected  to  be  robbed  of  Iiis  goods  in  order  to  share  the  spoil." 
2  Kent's  Com.  603. 

The  same  public  policy  which  established  this  rule,  and  which 
has  continued  it  in  existence  for  ages,  forbids  its  destruction  at  this 
day  in  any  locality,  by  any  pretended  custom,  especially  when  the 
business  of  common  carriers  has  so  much  increased,  and  the  necessity 
for  the  rule,  instead  of  being  diminislied,  is  also  increased.  The 
custom,  then,  sought  to  be  established  in  this  case  is  contrary  to 
law,  in  contravention  of  a  sound  public  policy,  and  cannot  receive 
our  sanction. 

It  follows  that  the  court  below  erred  in  overruling  the  designated 
exceptions  to  tlie  answer  of  respondents,  and  in  admitting  parol  evi- 
dence to  estaldish  tlie  custom  relied  on;  and  its  decree  must  be 
reversed  and  tlie  cause  remanded. 


LIMITATION   OF   LIABILITY.  193 

BLOSSOM   u.   DODD. 
43  N.  Y.  264.     1870. 

Appeal  from  an  order  of  the  General  Term  of  the  Supreme  Court, 
in  the  second  judicial  district,  setting  aside  a  judgment  entered  upon 
the  report  of  a  referee  and  granting  a  new  trial. 

This  action  was  brought  to  recover  for  baggage  of  the  plaintiff  lost 
by  the  defendant. 

The  defendant  was  the  president  of  Dodd's  Express,  a  joint  stock 
company,  doing  business  in  the  city  of  New  York  and  its  vicinity. 

On  the  17th  of  October,  18G6,  the  plaintiff  was  a  passenger  on  a 
train  of  cars,  which  was  proceeding  to  New  York  on  the  New  Jersey 
Central  Railroad.  When  the  train  was  nearly  at  the  end  of  its  route, 
and  between  the  hours  of  ten  and  eleven  o'clock  in  the  evening,  a 
messenger  of  Dodd's  Express  entered  the  car  and  inquired  of  him  if 
he  had  any  baggage  to  be  delivered. 

The  plaintiff  thereupon  handed  to  the  messenger  two  railroad 
baggage-checks,  one  of  which  was  for  a  gun-case  containing  a  gun, 
and  the  other  was  a  valise  containing  wearing  apparel  and  other 
articles.  The  messenger  entered  the  numbers  of  the  checks  in 
pencil  upon  a  card  or  receipt  of  which  the  following  is  a  copy,  omit- 
ting the  advertisement  in  large  type  at  the  top  of  the  paper. 


Dodd's  Express. 


N.  J.  R.  R.  Depot,  Pier  13  N.  R.,  } 
No.  944  Broadway,  N.  Y.         \ 


m  Q 
&3   -A 

►J   'A 

^5 


tm"  It  is  mutually  agreed,  and  is  part  of  the  consideration  of  the  contract, 
that  Dodd's  Express  shall  not  be  liable  for  merchandise  or  jewelry  contained 
in  baggage,  nor  for  loss  by  fire,  nor  for  an  amount  exceeding  One'Hundreh 
Dollars  upon  any  article  unless  specially  agreed  for  in  writing  on  the  re- 
ceipt and  the  extra  risk  paid  therefor,  nor  for  baggage  to  railroad,  steamboat, 
or  steamship  lines  after  the  same  has  been  left  at  the  usual  ])lace  of  delivery 
to  such  lines,  and  the  owner  hereby  agrees  that  Dodd's  Express  shall  be  linhlc 
only  as  above  ;  and  it  is  further  agreed  tliat  said  express  shall  not  be  liable 
for  loss  or  damage  unless  the  claim  therefor  be  made  in  writing  at  their  prin- 
cipal office,  with  this  receipt  annexed,  withiu  thirty  days  thereafter. 

13 


tf 


194  CARRIERS   OF   GOODS. 

At  the  time  the  cars  were  running  rapidly,  the  lights  were  mostly 
out,  and  the  car  in  which  the  plaintiff  was,  was  nearly  dark,  but  there 
was  one  light  at  the  end. 

This  light  was  insufficient  to  enable  the  plaintiff  to  read  the  printed 
matter  at  the  place  where  he  sat,  and  he  did  not  read  it. 

The  said  Dodd's  Express  received  the  valise  and  gun-case  from  the 
railroad  company,  and  on  the  following  day  delivered  the  gun-case, 
but  neglected  to  deliver  the  valise  or  any  of  its  contents  to  the 
plaintiff.  Evidence  tending  to  show  it  was  stolen,  or  fell  from  one 
of  the  plaintiff's  wagons,  was  given. 

The  valise  and  its  contents  were  worth  about  S2G0.  The  referee 
found  that  the  valise  was  stolen  from  the  defendant's  wagon. 

The  answer  put  in  issue  the  negligence  and  the  value  of  the  prop- 
erty lost,  and  set  up  a  special  contract  restricting  the  liability  of 
the  defendant. 

The  case  was  tried  before  a  referee,  who  found,  as  conclusions  of 
law :  — 

1.  The  said  baggage  was  received  by  the  said  Dodd's  Express,  to 
be  transported  to  plaintiff's  residence,  under  and  subject  to  the  con- 
ditions expressed  in  said  receipt,  and  not  otherwise. 

2.  That,  by  delivery  to  the  plaintiff,  and  his  acceptance  of  tlu>  said 
card  or  receipt,  under  the  circumstances,  he  consented  and  agreed 
that  said  Dodd's  Express  should  not  be  liable  for  the  loss  of  the  said 
valise  to  an  amount  exceeding  one  hundred  dollars. 

3.  That  the  plaintiff  is  entitled  to  recover  from  defendant  only 
the  sum  of  one  hundred  dollars  and  interest  from  October  17,  ISGG. 

To  all  of  which  conclusions  of  law  the  plaintiff'  excej)ted. 

From  the  judgment  entered  upon  this  report,  an  appeal  was  taken 
to  the  General  Term,  where  the  judgment  was  set  aside  and  a  new 
trial  ordered;  and  from  such  order  an  appeal  was  taken  to  this 
court. 

Church,  Ch.  J.  The  common-law  liability  of  common  carriers 
cannot  be  limited  by  a  notice,  even  though  such  notice  be  brought  to 
the  knowledge  of  the  persons  whose  property  they  carry.  Dorr  v. 
X.  J.  Steam  Navigation  Co.,  1  Kern.  4Sa.  P>ut  such  liabilities 
may  be  limited  by  express  contract.  Id.;  Bissull  r.  N.  Y.  Central 
K.  R.  Co.,  412;  Fn-ncli  v.  r.uffnl..,  X.  Y.  &  Erie  K.  K.  Co.,  4 
Keyes,  108. 

The  principal  question  in  this  cu.se  is,  whether  there  was  a  con- 
tract made  between  the  jiarties  limiting  the  liability  of  the  defend- 
ants to  a  loss  of  S1(»0  for  the  valise  and  its  contents,  which  tlie 
plaintiff  intrusted  to  their  care.  Kfncainnla  of  the  card  upon  which 
the  alleged  contract  was  printed  has  been  furnished  in  the  ])apers. 
It  «loes  not  ajjpear,  on  examination,  like  a  contract,  and  would  not, 
from  its  general  appearance,  lie  taken  for  anytliing  more  than  a 
token  or  rlieok  denoting  the  numbers  of  the  checks  received,  to  be 
used  for  identification  upon  the  delivery  of  the  baggage.     'I'hf  larger 


LIMITATION   OF   LIABILITY.  195 

portion  of  the  printed  matter  is  an  advertisement,  in  large  type. 
The  alleged  contract  is  printed  in  very  small  type,  and  is  illegible 
in  the  night  by  the  ordinary  lights  in  a  railroad  car,  and  is  not  at 
all  attractive,  while  other  parts  of  the  paper  are  quite  so. 

Considerable  stress  is  laid  upon  the  fact  that  the  words,  "Kead 
this  receipt,"  were  printed  on  the  card  in  legible  type. 

The  receipt  reads :  "  Keceived  of  M articles  or  checks  numbered 

as  below:  368—319."  "For  Dodd's  Express."  The  blank  is  not 
filled,  nor  is  the  receipt  signed  by  any  one.  The  invitation  is  not 
to  read  the  contract,  but  the  receipt.  In  order  to  read  it,  the  paper 
must  be  turned  sideways;  and  no  one,  thus  reading  the  receipt, 
would  suspect  that  it  had  any  connection  with  the  alleged  contract, 
which  is  printed  in  different  and  very  small  type  across  the  bottom 
of  the  paper.  It  is  no  part  of  the  receipt,  is  not  connected  with  it, 
and  is  not  referred  to  in  any  other  part  of  the  paper.  The  defend- 
ants are  dealing  with  all  classes  of  the  community ;  and  public  policy, 
as  well  as  established  principles,  demand  that  the  utmost  fairness 
should  be  observed. 

This  paper  is  subject  to  the  criticism  made  by  Lord  Ellenborough, 
in  Butler  v.  Heane,  Camp.  415,  in  which  he  said,  that  "it  called 
attention  to  everything  that  was  attractive,  and  concealed  what  was 
calculated  to  repel  customers ;  "  and  added :  "  If  a  common  carrier  is 
to  be  allowed  to  limit  his  liability,  he  must  take  care  that  any  one 
who  deals  with  him  is  fully  informed  of  the  limits  to  which  he  con- 
fines it."  Nor  did  the  nature  of  the  business  necessarily  convey 
the  idea  of  a  contract  to  the  traveller  in  such  a  manner  as  to  raise 
the  presumption  that  he  knew  it  was  a  contract,  expressive  of  the 
terms  upon  which  the  property  was  carried,  or  limiting  the  liability 
of  the  carrier.  Baggage  is  usually  identified  by  means  of  checks  or 
tokens.  And  such  a  card  does  not  necessarily  import  anything  else. 
At  all  events,  to  have  the  effect  claimed,  the  limitation  should  be  as 
conspicuous  and  legible  as  other  portions  of  the  paper.  In  Brown 
V.  E.  R.  R.  Co.,  11  Cush.,  97,  where  the  limitation  was  printed 
upon  the  back  of  a  passenger  ticket,  the  court  say:  "The  party 
receiving  it  might  well  suppose  that  it  was  a  mere  check,  signifying 
that  the  party  had  paid  his  passage  to  the  place  indicated  on  the 
ticket."  In  the  cases  of  Prentice  v.  Decker,  49  Barb.  21,  and 
Limburger  v.  Wescott,  id.  283,  limitations  were  claimed  upon  the 
delivery  of  similar  cards  of  anotlier  express  company,  and  the  court 
held,  in  both  cases,  that  sucli  delivery  did  not  charge  the  persons 
receiving  them  with  knowledge  that  they  contained  contracts. 

A  different  construction  was  put  upon  the  delivery  of  a  similar 
card,  in  Hopkins  v.  Wescott,  6  Blatchf.  R.  64;  but  I  infer  that 
the  learned  judge  who  delivered  the  opinion  intended  to  decide  that 
something  short  of  an  express  contract  will  suffice  to  screen  the 
carrier  from  his  common-law  liabilit}',  and  that  a  notice,  personally 
served,  which  could  be  read,  would  liave  that  effect.     The  attention 


19(j  CARKIEKS   OF   GOODS. 

of  the  court  does  not  seem  to  liave  beau  directed  to  the  distinction 
between  such  a  notice  and  a  contract.  The  delivery  and  acceptance 
of  a  paper  containing  the  contract  may  be  binding,  though  not  read, 
provided  the  business  is  of  such  a  nature  and  the  delivery  is  under 
such  circumstances  as  to  raise  the  presumption  that  the  person 
receiving  it  knows  that  it  is  a  contract,  containing  the  terms  and 
conditions  upon  which  the  property  is  received  to  be  carried.  In 
such  a  case  it  is  presumed  that  the  person  assents  to  the  terms, 
whatever  they  may  be.  This  is  the  utmost  extent  to  which  the  rule 
can  be  carried,  without  abandoning  the  principle  that  a  contract  is 
indispensable.  The  recent  case  of  Grace  r.  Adams,  100  Mass.  oGO 
[220],  relied  upon  by  the  defendant's  counsel,  was  decided  upon 
this  principle.  The  plaintitf  delivered  a  package  of  money  to  an 
express  company,  and  took  a  receipt  containing  a  provision  exempt- 
ing the  company  from  liability  for  loss  by  fire;  and  the  court  held 
that  he  knew  that  the  paper  contained  the  conditions  upon  which 
the  money  was  to  be  carried,  and  was  therefore  presumed  to  have 
assented  to  them,  although  he  did  not  read  the  paper.  The  court 
say:  "It  is  not  claimed  that  he  did  not  know,  when  he  took  it,  that 
it  was  a  shipping  contract,  or  bill  of  lading."  So,  in  Van  Goll  v. 
The  S.  E.  K.  Co.,  lot  Eng.  Com.  Law  E.  75,  the  same  princijde 
was  decided.  Willes,  J.,  said:  ''Assuming  that  the  plaintiff  did 
not  read  the  terms  of  the  condition,  it  is  evident  she  knew  they  were 
there."  Keating,  J.,  said:  "It  was  incumbent  on  the  com])any  to 
show  that  such  was  the  contract."  .  .  .  "  I  think  there  was  evidence 
that  the  plaintiff  assented  to  those  terms." 

As  to  bills  of  lading  and  other  commercial  instruments  of  like 
character,  it  has  been  held  that  persons  receiving  them  are  pre- 
sumed to  know,  from  their  uniform  character  and  the  nature  of  the 
business,  that  they  contain  the  terms  upon  which  the  projierty  is  to 
be  carried.  But  checks  for  baggage  are  not  of  that  cliaracter,  nor  is 
such  a  card  as  was  delivered  in  this  instance.  It  was,  at  least, 
equivocal  in  its  character.  In  such  a  case  a  person  is  not  presumed 
to  know  its  contents,  or  to  assent  to  them. 

The  circumstances  under  which  the  pai)er  was  received  repel  tlie 
idea  of  a  contract.  No  sucli  intimation  was  made  to  the  plaintiff. 
He  did  not,  and  could  not,  if  lie  had  tried,  read  it  in  liis  seat.  It 
is  found  that  be  might  have  read  it  at  the  end  of  the  car,  or  by  the 
lights  on  the  ]>ier  or  in  the  ferry-boat;  and  it  is  claimed  that  he 
should  havn  done  so,  and,  if  dissritisfied,  slionld  have  expressed  his 
dissent.  If  lie  had  done  so,  and  in  the  bustle  aiul  confusion  inei- 
dent  to  such  occasions,  could  have  found  the  messenger  and  demanded 
his  baggage,  the  latter  might  have  claimed,  upon  the  theory  of  this 
defence,  that  the  contract  was  completed  at  tlic  delivery  of  tlio 
pajter,  and  that  he  had  a  right  to  ])erform  it  and  receive  tlio 
compf^nsation. 

It  is  impossible  to  maintain  tliis  dcf-iif' witli..ut  violating  estab- 


LIMITATION   OF   LIABILITY.  197 

lished  legal  principles  in  relation  to  contracts.  It  was  suggested  on 
the  argument,  that  the  stipulation  to  charge  according  to  the  value 
of  the  property  is  just  and  proper.  Tliis  may  be  true;  but  the 
traveller  should  have  something  to  say  about  it.  The  contract 
cannot  be  made  by  one  party.  If  the  traveller  is  informed  of  the 
charges  graduated  by  value,  he  can  have  a  voice  in  the  bargain;  but 
in  this  case  he  had  none.  Whilst  the  carrier  should  be  protected 
in  his  legal  right  to  limit  his  responsibility,  the  public  should  also 
be  protected  against  imposition  and  fraud.  The  carrier  must  deal 
with  the  public  upon  terms  of  equality;  and,  if  he  desires  to  limit 
his  liability,  he  must  secure  the  assent  of  those  with  whom  he 
transacts  business. 

My  conclusion  is,  that  no  contract  was  proved. 

1.  Because  it  was  obscurely  printed. 

2.  Because  the  nature  of  the  transaction  was  not  such  as  neces- 
sarily charged  the  plaintiff  with  knowledge  that  the  paper  contained 
the  contract. 

3.  Because  the  circumstances  attending  the  delivery  of  the  card 
repel  the  idea  that  the  plaintiff  had  such  knowledge,  or  assented  in 
fact  to  the  terms  of  the  alleged  contract. 

The  order  granting  a  new  trial  must  be  affirmed,  and  judgment 
absolute  ordered  for  the  plaintiff,  with  costs. 

All  the  judges  concurring,  upon  the  ground  that  no  contract  limit- 
ing the  liability  of  defendants  was  proved. 

Order  affirmed  and  judgment  absolute  for  the  plaintiff  ordered. 


b.  In  case  of  negligence. 

LIVERPOOL   STEAM  CO.    v,   PHENIX   INS.    CO. 
129  U.  S.  397.     1889. 

Mr.  Justice  Gray.  This  is  an  appeal  by  a  steamship  company 
from  a  decree  rendered  against  it  upon  a  libel  in  admiralt}',  "  in  a 
cause  of  action  arising  from  breach  of  contract,"  brought  by  an  insur- 
ance company,  claiming  to  be  subrogated  to  the  rights  of  the  owners 
of  goods  shipped  on  board  the  "Montana,"  one  of  the  appellant's 
steamships,  at  New  York,  to  be  carried  to  Liverpool,  and  lost  or 
damaged  by  her  stranding,  because  of  the  negligence  of  her  master 
and  officers,  in  Holyhead  Bay,  on  the  coast  of  Wales,  before  reaching 
her  destination. 

In  behalf  of  the  appellant,  it  was  contended  that  the  loss  was 
caused  by  perils  of  the  sea,  without  any  negligence  on  the  part  of 
master  and  officers;  that  the  appellant  was  not  a  common  carrier; 
that  it  was  exempt  from  liability  by  the  terms  of  the  bills  of  lading; 


198  CAKKIERS   OF   GOODS. 

and  that  the  libellant  had  not  been  subrogated  to  the  rights  of  the 
owners  of  the  goods. 

It  is  to  be  remembered  that  the  jurisdiction  of  this  court  to  review 
the  decree  below  is  limited  to  questions  of  law,  and  does  not  extend 
to  questions  of  fact.  Act  of  February  IG,  1875,  c.  77,  sec.  1;  18  Stat. 
315;  The  Gazelle,.  128  U.  S.  474,  484,  and  cases  there  cited. 

"On  the  foregoing  facts,"  the  only  conclusion  of  law  stated  by  the 
Circuit  Court  (except  those  affecting  the  right  of  subrogation  and 
the  amount  to  be  recovered)  is  in  these  words:  "The  stranding  of 
the  '  Montana '  and  the  consequent  damage  to  her  cargo  having  been 
the  direct  result  of  the  negligence  of  the  master  and  otticers  of  the 
steamer,  the  respondent  is  liable  therefor."  Negligence  is  not  here 
stated  as  a  conclusion  of  law,  but  assumed  as  a  fact  already  found. 
The  conclusion  of  law  is,  in  effect,  that,  such  being  the  fact,  the  re- 
spondent is  liable,  notwithstanding  any  clause  in  the  bills  of  lading. 

We  are  then  brought  to  the  consideration  of  the  principal  ques- 
tion in  the  case;  namely,  the  validity  and  effect  of  that  clause  in 
each  bill  of  lading  by  which  the  appellant  undertook  to  exempt 
itself  from  all  responsibility  for  loss  or  damage  by  perils  of  the  sea, 
arising  from  negligence  of  the  master  and  crew  of  the  ship. 

The  question  appears  to  us  to  be  substantially  determined  by  the 
judgment  of  this  court  in  Railroad  Co.  v.  Lockwood,  17  Wall.  .357. 

Tliat  case,  indeed,  differed  in  its  facts  from  the  case  at  bar.  It 
was  an  action  brought  against  a  railroad  corporation  by  a  drover, 
who,  while  being  carried  with  his  cattle  on  one  of  its  trains  under 
an  agreement  which  it  had  required  him  to  sign,  and  by  which  he 
was  to  pay  certain  rates  for  the  carriage  of  the  cattle,  to  pass  free 
himself,  and  to  take  the  risks  of  all  injuries  to  himself  or  to  them, 
was  injured  by  the  negligence  of  the  defendant  or  its  servants. 

The  judgment  for  the  plaintiff,  however,  was  not  rested  upon  the 
form  of  the  agreement,  or  upon  any  difference  between  railroad 
corporations  and  other  carriers,  or  between  carriers  by  land  and 
carriers  by  sea,  or  between  carriers  of  passengers  and  carriers  of 
goods,  but  upon  the  broad  ground  that  no  public  carrier  is  permitted 
by  law  to  stipulate  for  an  exemption  from  tlie  consequence  of  the 
negligence  of  himself  or  his  servants. 

The  very  question  there  at  issue,  defined  at  the  beginning  of  the 
opinion  as  "whether  a  railroad  company,  carrying  iKissengors  for 
hire,  can  lawfully  stipulate  not  to  be  answerable  for  their  own  or 
their  servants'  nr-gligence  in  reference  to  such  carriage,"  was  stated 
a  little  further  on  in  more  general  terms  as  "the  question  l)efore 
propounded;  namely,  whether  common  carriers  may  excuse  tlieiii- 
BelvoK  from  liability  for  negligence;"  and  a  negative  answer  to  the 
f|uestion  thus  stated  was  a  necessary  link  in  the  logical  cliain  of 
c<'     '  announced  at  the  end  of  tlin  opiniftn  as  constituting  tlie 

r»  ndi     17  Wall.  35i»,  303,  381. 


LIMITATION    OF   LIABILITY.  199 

The  course  of  reasoning,  supported  by  elaborate  argument  and 
illustration,  and  by  copious  references  to  authorities,  by  which 
those  conclusions  were  reached,   may  be  summed  up  as  follows: 

By  the  common  law  of  England  and  America  before  the  Declara- 
tion of  Independence,  recognized  by  the  weight  of  English  authority 
for  half  a  century  afterwards,  and  upheld  by  decisions  of  the 
highest  courts  of  many  States  of  the  Union,  common  carriers  could 
not  stipulate  for  immunity  for  their  own  or  their  servants'  negli- 
gence. The  English  Kailway  and  Canal  Traffic  Act  of  1854,  decfar- 
ing  void  ail  notices  and  conditions  made  by  those  classes  of  common 
carriers,  except  such  as  should  be  held  by  the  courts  or  judge  before 
whom  the  case  should  be  tried  to  be  just  and  reasonable,  was  sub- 
stantially a  return  to  the  rule  of  the  common  law. 

The  only  important  modification  by  the  Congress  of  the  United 
States  of  the  previously  existing  law  on  this  subject  is  the  Act  of 
1851,  to  limit  the  liability  of  ship-owners  (Act  of  March  3,  1851, 
c.  43;  9  Stat.  G35;  liev.  Stat.  sec.  4282-4289  [721,722]),  and  that 
act  leaves  them  liable  without  limit  for  their  own  negligence,  and 
liable  to  the  extent  of  the  ship  and  freight  for  the  negligence  or 
misconduct  of  their  master  and  crew. 

The  employment  of  a  common  carrier  is  a  public  one,  charging 
him  with  the  duty  of  accommodating  the  public  in  the  line  of  his 
employment.  A  common  carrier  is  such  by  virtue  of  his  occupation, 
not  by  virtue  of  the  responsibilities  under  which  he  rests.  Even  if 
the  extent  of  these  responsibilities  is  restricted  by  law  or  by  con- 
tract, the  nature  of  his  occupation  makes  him  a  common  carrier 
still.  A  common  carrier  may  become  a  private  carrier,  or  a  bailee 
for  hire,  when,  as  a  matter  of  accommodation  or  special  engagement, 
he  undertakes  to  carry  something  which  it  is  not  his  business  to 
carry.  But  when  a  carrier  has  a  regularly  established  business  for 
carrying  all  or  certain  articles,  and  especially  if  that  carrier  is  a 
corporation  created  for  the  purpose  of  the  carrying  trade,  and  the 
carriage  of  the  articles  is  embraced  within  the  scope  of  its  chartered 
powers,  it  is  a  common  carrier,  and  a  special  contract  about  its 
responsibility  does  not  divest  it  of  that  character. 

The  fundamental  principle,  upon  which  the  law  of  common 
carriers  was  established,  was  to  secure  the  utmost  care  and  dili- 
gence in  the  performance  of  their  duties.  That  end  was  effected  in 
regard  to  goods,  by  charging  the  common  carrier  as  an  insurer,  and 
in  regard  to  passengers  by  exacting  the  highest  degree  of  carefulness 
and  diligence.  A  carrier  who  stipulates  not  to  be  bound  to  the 
exercise  of  care  and  diligence  seeks  to  put  off  the  essential  duties 
of  his  employment. 

Xor  can  those  duties  be  waived  in  respect  to  his  agents  or  servants, 
especially  Avhere  the  carrier  is  an  artificial  being,  incapable  of  acting 
except  by  agents  and  servants.     The  law  demands  of  the  carrier 


200  CAKKIERS   OF   GOODS. 

carefulness  and  diligence  in  periovming  the  service;  not  merely  an 
abstract  carefulness  and  diligence  in  proprietors  and  stockholders 
who  take  uo  active  part  in  the  business.  To  admit  such  a  distinc- 
tion in  the  law  of  common  carriers,  as  the  business  is  now  carried 
on,  would  be  subversive  of  the  very  object  of  the  law. 

The  carrier  and. his  customer  do  not  stand  upon  a  footing  of 
equality.  The  individual  customer  has  no  real  freedom  of  choice. 
He  cannot  afford  to  higgle  or  stand  out,  and  seek  redress  in  the 
courts.  He  prefers  rather  to  accept  any  bill  of  lading,  or  to  sign 
any  paper,  that  the  carrier  presents;  and  in  most  cases  he  has  uo 
alternative  but  to  do  this,  or  to  abandon  his  business. 

Special  contracts  between  the  carrier  or  the  customer,  the  terms 
of  which  are  just  and  reasonable  and  not  contrary  to  public  policy, 
are  upheld;  such  as  those  exempting  the  carrier  from  responsibility 
for  losses  hap|)ening  from  accident,  or  from  dangers  of  navigation 
that  no  human  skill  or  diligence  can  guard  against;  or  for  money 
or  other  valuable  articles,  liable  to  be  stolen  or  damaged  —  unless 
informed  of  their  character  or  value ;  or  for  perishable  articles  or 
live  animals,  when  injured  without  default  or  negligence  of  the 
carrier.  But  tla*  law  does  not  allow  a  public  carrier  to  abandon 
altogether  his  obligations  to  the  public,  and  to  stipulate  for  exemp- 
tions which  are  unreasonable  and  improper,  amounting  to  an  abne- 
gation of  the  essential  duties  of  his  employment. 

It  being  against  the  i)olicy  of  the  law  to  allow  stipulations  which 
will  relieve  the  railroad  company  from  the  exercise  of  care  and  dili- 
gence, or  which,  in  other  words,  will  excuse  it  for  negligence  in  the 
performance  of  its  duty,  the  company  remains  liable  for  such 
negligence. 

This  analysis  of  the  opinion  in  Kailroad  Co.  v.  Lockwood  shows 
that  it  affirms  and  rests  upon  the  doctrine  that  an  exjjress  stipulation 
by  any  common  carrier  for  hire,  in  a  contract  of  carriage,  that  he 
shall  be  exempt  from  liability  for  losses  caused  by  the  negligence 
of  himself  or  his  servants,  is  unreasonable  and  contrary  to  the  public 
jiolicy,  and  consequently  void.  And  such  has  always  been  the 
understanding  of  this  court,  expressed  in  several  later  cases. 
Kxpress  Co.  v.  Caldwell,  21  Wall.  204,  20S  [210]);  Kailrcad  Co.  r. 
I'ratt,  22  Wall.  123,  I'M;  I'.ank  of  Kentucky  r.  Adams  Exjiress  Co., 
[).',  U.'  S.  174,  lS;i;  Kailway  Co.  >\  Stevens.  95  U.  S.  05.'.;  Hart  v. 
IVnnsylvania  Railroad,  112  U.  S.  .'^.31,  ;i.3S;  Pluenix  Ins.  Co.  v. 
Eri»-  Transportation  Co.,  117  V.  S.  .'{12,  ;VJ2;  Inman  r.  South  Candina 
Railway,  ante  [129  U.  S.].  12S. 

1 1  was  argued  for  the  appellant,  tliat  the  law  of  New  York ,  the 
ler  lori  rnntrnctus,  was  settled  by  recent  decisions  of  the  Court  of 
Appeals  of  tliat  State  in  favor  of  the  right  of  a  carrier  of  goods  or 
passengers,  by  land  or  water,  to  stipulate  for  exemption  frnm  all 


LIMITATION   OF   LIABILITY.  201 

liability  for  his  own  negligence.     Mynard  v.  Syracuse  Railroad,  77 
N.  Y.  180.^     Spinette  v.  Atlas  Steamship  Co.,  SO  N.  Y.  71. 

1  MYNARD  V.  SYRACUSE,  etc.  R.  CO. 

71  N.  Y.  180.     1877. 

This  action  was  brought  to  recover  damages  for  the  loss  of  a  steer,  while  being 
transported  on  defendant's  road  from  Syracuse  to  Binghamton. 

Church,  Ch.  J.  The  parties  stipulated  that  the  animal  was  lost  by  reason  of  the 
negligence  of  some  of  the  employees  of  the  defendant  without  the  fault  of  the  plaintiff. 
The  defence  rested  solely  upon  exemption  from  liability  contained  in  the  contract 
of  shipment,  by  which,  for  the  consideration  of  a  reduced  rate,  the  plaintiff  agreed  to 
"release  and  discharge  the  said  company  from  all  claims,  demands,  and  liabilities  of 
every  kind  whatsoever  for,  or  on  account  of,  or  connected  with  any  damage  or  injury 
to  or  the  loss  of  said  stock,  or  any  portion  thereof,  from  whatsoever  cause  arising." 

The  question  depends  upon  the  construction  to  be  given  to  this  contract,  whether 
the  exemption  "from  whatever  cause  arising"  should  be  taken  to  include  a  loss 
accruing  by  the  negligence  of  the  defendant  or  its  servants.  The  language  is  general 
and  broad.  Taken  literally  it  would  include  the  loss  in  question,  and  it  would  also 
include  a  loss  accruing  from  an  intentional  or  wilful  act  on  the  part  of  servants. 
It  is  conceded  that  the  latter  is  not  included.  We  must  look  at  the  language  in 
connection  with  the  circumstances  and  determine  what  was  intended  and  whether  the 
exemption  claimed  was  within  the  contemplation  of  the  parties. 

The  defendant  was  a  common  carrier,  and  as  such  was  absolutely  liable  for  the  safe 
carriage  and  delivery  of  property  intrusted  to  its  care,  except  for  loss  or  injury 
occasioned  by  the  acts  of  God  or  public  enemies.  The  obligations  are  imposed  by  law, 
and  not  by  contract.  A  common  carrier  is  subject  to  two  distinct  classes  of  liabilities, 
—  one  where  he  is  liable  as  an  insurer  without  fault  on  his  part  ;  the  other,  as  an 
ordinary  bailee  for  hire,  when  he  is  liable  for  default  in  not  exercising  proper  care  and 
diligence  ;  or,  in  other  words,  for  negligence.  General  words  from  whatever  cause 
arising  may  well  be  satisfied  by  limiting  them  to  such  ordinar}'  liabilities  as  carriers 
are  under  without  fault  or  negligence  on  their  part. 

When  general  words  may  operate  without  including  the  negligence  of  the  carrier  or 
his  servants,  it  will  not  be  presumed  that  it  was  intended  to  include  it.  Every 
presumption  is  against  an  intention  to  contract  for  immunity  for  not  exercising 
ordinary  diligence  in  the  transaction  of  any  business,  and  hence  the  general  rule  is 
that  contracts  will  not  be  so  construed,  unless  expressed  in  unequivocal  terms.  In 
New  Jersey  Steam  Navigation  Company  v.  Merchants'  Bank,  6  How.  [IT.  S.  R.],  344, 
a  contract  that  the  caniers  are  not  responsible  in  any  event  for  loss  or  damages  was 
held  not  intended  to  exonerate  them  from  liability  for  want  of  ordinary  care.  Nelson, 
J.,  said  :  "  The  language  is  general  and  broad,  and  might  very  well  comprehend  every 
description  of  risk  incident  to  the  shipment.  But  we  think  it  would  be  going  further 
than  the  intent  of  the  parties  upon  any  fair  and  reasonable  construction  of  the  agree- 
ment, were  we  to  regard  it  as  stipulating  for  wilful  misconduct,  gross  negligence,  or 
want  of  ordinary  care,  either  in  the  seaworthiness  of  the  vessel,  her  proper  equipments 
and  furniture,  or  in  her  management  by  the  master  and  hands."  .... 

These  authorities  are  directly  in  point,  and  they  accord  with  the  wise  public  policy 
by  which  courts  should  be  guided  in  the  construction  of  contracts  designed  to  relieve 
common  caniers  from  obligation  to  exercise  care  and  diligence  in  the  prosecution  of 
their  business,  which  the  law  imposes  upon  ordinary  bailees  for  hire  engaged  in  private 
business.  In  the  recent  case  of  Lockwood  v.  Railroad  Co.,  17  Wall.  3.^)7,  the  Supreme 
Court  of  the  United  States  decided  that  a  common  carrier  cannot  lawfully  stipulate 
for  exemption  from  responsibility  for  the  negligence  of  himself  or  his  servants.  If  we 
felt  at  liberty  to  review  the  question,  the  reasoning  of  Ju.stice  Bradley  in  that  rase 


202  CARRIERS   OF   GOODS. 

But  on  this  subject,  as  on  any  question  depending  upon  mercantile 
law  and  not  upon  local  statute  or  usage,  it  is  well  settled  that  the 
courts  of  the  United  States  are  not  bound  by  decisions  of  the  courts 
of  the  State,  but  will  exercise  their  own  judgment,  even  when  tlieir 
jurisdiction  attaches  only  by  reason  of  the  citizenship  of  the  parties, 
in  an  action  at  law  of  which  the  courts  of  the  State  have  concurrent 
jurisdiction,  and  upon  a  contract  made  and  to  be  performed  within 
the  State.  Kailroad  Co.  v.  Lockwood,  17  AVall.  357,308;  Myrick  r. 
Michigan  Central  Kailroad,  107  U.  S.  102;  Carpenter  v.  "Washington 
Ins.  Co.,  16  Pet.  495,  511;  Swift  v.  Tyson,  16  Tet.  1;  Kailroad  Co. 
V.  National  Bank,  102  U.  S.  14;  Burgess  r.  Seligman,  107  U.  S. 
20,  33;  Smith  r.  Alabama,  124  U.  S.  365,  478;  Bucher  v.  Cheshire 
Kailroad,  1-5  U.  S.  ooo,  583.  The  decision  of  the  State  courts 
certainly  cannot  be  allowed  any  greater  weight  in  the  Federal  courts 
when  exercising  the  admiralty  and  maritime  jurisdiction  exclusively 
vested  in  them  by  the  Constitution  of  the  United  States. 

It  was  also  argued  in  behalf  of  the  appellant  that  tlie  validity 
and  effect  of  tliis  contract,  to  be  performed  princiiuilly  upon  the 
high  seas,  should  be  governed  by  the  general  maritime  law,  and 
that  by  that  law  such  stipulations  are  valid.  To  this  argument 
there  are  two  answers. 

First.  There  is  not  shown  to  be  any  such  general  maritime  law. 
The  industry  of  the  learned  counsel  for  the  appellant  has  collected 
articles  of  codes,  decisions  of  courts,  and  opinions  of  commentators 
in  France,  Italy,  Germany,  and  Holland,  tending  to  show  that,  by 
the  law  administered  in  those  countries,  such  a  stipulation  would 
be  valid.  But  those  decisions  and  ojiinions  do  not  appear  to  have 
been  based  on  general  maritime  law,  but  largely,  if  not  wholly, 
upon  provisions  or  omissions  in  the  codes  of  the  particular  country; 
and  it  has  been  said  by  many  jurists  that  the  law  of  France,  at 
least,  was  otherwise.  See  2  Pardessus  Droit  Commercial,  no.  542; 
4  Goujet  &  Meyer  Diet.  Droit  Commercial  (2d  ed.)  2  Voiturier, 
nos.  1,  81;  2  Trojding  Droit  Civil,  nos.  81)4,  «»10,  «ML',  and  other 
books  cited  in  Peninsular  &  Oriental  Co.  v.  Shand,  3  Moore  P.  C. 
(y.  K.)  272,  278,  28.5,  286;  25  Laurent  Droit  Civil  Franeais,  no. 
5.''.2;  Mellish,  L.  J.,  in  Cohen  r.  Southeastern  Kailway,  2  Ex.  I). 
253,  257. 

Second.  The  general  maritime  law  is  in  foree  in  this  country,  or 
in  any  other,  so  far  only  as  it  has  been  adopted  by  the  laws  or  usage 
tliereof;  and  no  rule  of  the  general  maritime  hiw  (if  any  exists) 
concerning  the  validity  of  such  a  stiitulation  as  that  now  before  us 
has  over  been  adopted  in  tl>e  United  States  or  England,  or  reco;^- 

woiiM  \tf  ontillcd  to  bpHouh  conKidcrntion  ;  Imt  tlio  ri^lit  tluis  to  KlijMilutc  lins  Iwoii  ho 
nii-aUnWy  affirnu-d  by  thin  co\irt  that  tin-  <ni<'8tion  rnmiot  with  iiropridy  Ix'  n^'anlt-l 
M  (in  o|K.n  one  in  t)m  SUit.-.  8  N.  Y.  375;  11  id.  485;  21  i-l.  1H1-I!»r,  ;  2r.  i-l. 
iV2  ■   1'  i.l    :'.]1;  40  id.  263;  61  id.  C>\. 


LIMITATION   OF   LIABILITY.  203 

nized  in  the  admiralty  courts  of  either.  The  Lottawanna,  21  Wall. 
558;  The  Scotland,  105  U.  S.  24,  29,  33;  The  Belganland,  114 
U.  S.  355,  369;  The  Harrisburg,  119  U.  S.  199;  The  Hamburg,  2 
Moore  P.  C.  (n.  s.)  289,  319;  s.  c.  Brown  &  Lush,  253,  272; 
Lloyd  V.  Guibert,  L.  R.  1  Q.  B.  115,  123,  124;  s.  c.  6  B.  &  S.  100, 
134,  136;  The  Gaetano  &  Maria,  7  P.  D.  137,  143. 

It  was  argued  in  this  court,  as  it  had  been  below,  that  as  the  con- 
tract was  to  be  chiefly  performed  on  board  of  a  British  vessel  and  to 
be  finally  completed  in  Great  Britain,  and  the  damage  occurred  in 
Great  Britain,  the  case  should  be  determined  by  the  British  law,  and 
that  by  that  law  the  clause  exempting  the  appellant  from  liability 
for  losses  occasioned  by  the  negligence  of  its  servants  was  valid. 

It  appears  by  the  cases  cited  in  behalf  of  the  appellant,  and  is 
hardly  denied  by  the  appellee,  that  under  the  existing  law  of  Great 
Britain,  as  declared  by  the  latest  decisions  of  her  courts,  common 
carriers,  by  land  or  sea,  except  so  far  as  they  are  controlled  by  the 
provisions  of  the  Railway  and  Canal  Traffic  Act  of  1854,  are  per- 
mitted to  exempt  themselves  by  express  contract  from  responsibility 
for  losses  occasioned  by  negligence  of  their  servants.  The  Duero, 
L.  R.  2  Ad.  &  Ec.  393;  Taubman  v.  Pacific  Co.,  26  Law  Times 
(]sr.  s.)  704;  Steel  v.  State  Line  Steamship  Co.,  3  App.  Cas.  72; 
Manchester,  etc.  R.  v.  Brown,  8  App.  Cas.  703.  It  may  therefore 
be  assumed  that  the  stipulation  now  in  question,  though  invalid  by 
our  law,  would  be  valid  according  to  the  law  of  Great  Britain. 

The  general  rule  as  to  what  law  should  prevail,  in  case  of  a  con- 
flict of  laws  concerning  a  private  contract,  was  concisely  and  exactly 
stated  before  the  Declaration  of  Independence  by  Lord  Mansfield 
(as  reported  by  Sir  William  Blackstone,  who  had  been  of  counsel  in 
the  case)  as  follows :  "  The  general  rule,  established  ex  comitate  et 
jure  gentium  is  that  the  place  where  the  contract  is  made,  and  not 
where  the  action  is  brought,  is  to  be  considered  in  expounding  and 
enforcing  the  contract.  But  the  rule  admits  of  an  exception,  when 
the  parties  (at  the  time  of  making  the  contract)  had  a  view  to  a 
different  kingdom."  Robinson  v.  Bland,  1  W.  Bl.  234,  256,  258; 
s.  c.  2  Bur.  1077,  1078. 

This  court  has  not  heretofore  had  occasion  to  consider  by  what 
law  contracts  like  those  now  before  us  should  be  expounded.  But  it 
lias  often  affirmed  and  acted  on  the  general  rule  that  contracts  are 
to  be  governed  as  to  their  nature,  their  validity,  and  their  interpre- 
tation, by  the  law  of  the  place  where  they  were  made,  unless  the 
contracting  parties  clearly  appear  to  have  had  some  other  law  in 
view.  Cox  V.  United  States,  6  Pet.  172;  Scudder  v.  Union  Bank, 
91  U.  S.  406;  Pritchard  v.  Norton,  106  U.  S.  124;  Lamar  v.  Micou, 
114  U.  S.  218;  Watts  v.  Camors,  115  U.  S.  353,  362. 


204  CARRIERS   OF   GOODS. 

This  review  of  the  principal  cases  demonstrates  that  according  to 
the  great  preponderance,  if  not  the  uniform  concurrence,  of  author- 
ity, the  general  rule  that  the  nature,  the  obligation,  and  the  inter- 
preUition  of  a  contract  are  to  be  governed  by  the  law  of  the  place 
where  it  is  made,  unless  the  parties  at  the  time  of  making  it  have 
some  other  law  in  view,  requires  a  contract  of  atfreightment,  made 
in  one  country  between  citizens  or  residents  thereof,  and  the  per- 
formance of  which  begins  there,  to  be  governed  by  the  law  of  that 
country,  unless  tlie  parties,  when  entering  into  the  contract,  clearly 
manifest  a  mutual  intention  that  it  shall  be  governed  by  the  law  of 
some  other  country. 

There  does  not  appear  to  us  to  be  anything  in  either  of  the  bills 
of  lading  in  the  present  case  tending  to  show  that  the  contracting 
parties  looked  to  the  law  of  England,  or  to  any  other  law  than  to 
that  of  the  place  where  the  contract  was  made. 

The  bill  of  lading  for  the  bacon  and  hams  was  made  and  dated  at 
New  York,  and  signed  l)y  the  ship's  agent  there.  It  acknowledges 
that  the  goods  have  been  shipped  "in  and  upon  the  steamship  called 
^lontana,  now  lying  in  the  port  of  New  York  and  bound  for  the  port 
of  Liverpool."  It  contains  no  indication  that  the  owners  of  the 
steamship  are  English,  or  that  their  principal  place  of  business  is  in 
England,  ratlu-r  than  in  this  country.  On  the  contrary,  the  only 
description  of  the  line  of  steanisliips  or  of  the  place  of  business  of 
their  owners,  is  in  a  memorandum  in  the  margin,  as  follows :  "  Guion 
Line.  United  States  ^lail  Steamers.  New  York:  20  Broadway. 
Liverfjool:  11  Rumford  St."  No  distinction  is  made  between  the 
]»laces  of  business  at  New  York  and  at  Liverpool,  except  that  the 
former  is  named  first.  The  reservation  of  liberty,  in  case  of  an 
interruption  of  the  voyage,  "to  transship  the  goods  by  any  other 
steamer,"  would  permit  transshipment  into  a  vessel  of  any  otlier  line, 
p]nglish  or  American.  And  general  average  is  to  be  computed, 
not  by  any  local  law  or  usage,  but  "according  to  York-Antwerp 
ruh-s,"  which  are  the  rules  drawn  up  in  1.S04  at  York  in  England, 
and  adopted  in  1877  at  Antwerp  in  lielgium,  at  international  con- 
ferences of  representatives  of  the  more  important  mercantile  associa- 
tions of  the  United  States,  as  well  as  of  the  maritime  countries  of 
Europe.     Lowndes  on  General  Average  (3d  cd.),  A])pcndix  Q. 

The  contract  being  made  at  New  York,  the  shipowner  having  a 
place  of  business  there,  and  the  shipper  being  an  American,  both 
parties  must  be  presumed  to  have  submitted  themselves  to  tlie  law 
there  prevailing,  and  to  have  agreed  to  its  action  upon  their  ron- 
Irnt.  The  Cfjntract  is  a  single  one,  ami  its  principal  object,  the 
Iruisjiortation  of  the  goods,  is  one  contiinuMis  act,  to  liegin  in  the 
port  of  New  York,  to  1)6  chiefly  performed  on  the  high  seas,  and  to 
end  at  the  port  of  Liverpool.  The  facts  that  the  goods  are  to  be 
delivered  at  Liverpool,  and  the  freight  and  primage,  thcrcf(»ro,  ])ay- 
able  there  in  sterling  currency,  do  not  make  tlie  contract  an  English 


LIMITATION    OF   LIABILITY.  205 

contract,  or  refer  to  the  English  law  the  question  of  the  liability  of 
the  carrier  for  the  negligence  of  the  master  and  crew  in  the  course 
of  the  voyage.  Peninsular  &  Oriental  Co.  v.  Shancl,^  Lloyd  v. 
Guibert;  ^  and  Chartered  Bank  of  India  v.  Netherlands  Steam  Navi- 
gation Co.,^  before  cited. 

There  is  even  less  ground  for  holding  the  three  bills  of  lading  of 
the  cotton  to  be  English  contracts.  Each  of  them  is  made  and  dated 
at  Nashville,  an  inland  city,  and  is  a  through  bill  of  ladin",  over 
the  Louisville  and  Nashville  Railroad  and  its  connections,  and  by 
the  Williams  and  Guion  Steamship  Company,  from  Nashville  to 
Liverpool ;  and  the  whole  freight  from  Nashville  to  Liverpool  is  to 
be  "at  the  rate  of  fifty  four  pence  sterling  per  100  lbs.  gross  weight." 
It  is  stipulated  that  the  liability  of  the  Louisville  and  Nashville 
Eailroad  and  its  connections  as  common  carriers  "terminates  on 
delivery  of  the  goods  or  property  to  the  steamship  company  at  New 
York,  when  the  liability  of  the  steamship  commences,  and  not 
before ;  "  and  that  "  the  property  shall  be  transported  from  the  port 
of  New  York  to  the  port  of  Liverpool  by  the  said  steamship  com- 
pany, with  liberty  to  ship  by  any  other  steamship  or  steamship 
line."  And  in  the  margin  is  this  significant  reference  to  a  provision 
of  the  statutes  of  the  United  States,  applicable  to  the  ocean  trans- 
portation only :  "  Attention  of  shippers  is  called  to  the  Act  of  Con- 
gress of  1851 :  '  Any  person  or  persons  shipping  oil  of  vitriol,  un- 
slacked  lime,  inflammable  matches  (or)  gunpowder,  in  a  ship  or  vessel 
taking  cargo  for  divers  persons  on  freight,  without  delivering  at  the 
time  of  shipment  a  note  in  writing,  expressing  the  nature  and  char- 
acter of  such  merchandise,  to  the  master,  mate,  or  officer,  or  person 
in  charge  of  the  loading  of  the  ship  or  vessel,  shall  forfeit  to  the 
United  States  One  Thousand  Dollars.'"  Act  of  March  3,  1851,  c. 
43,  sec.  7;  9  Stat.  636;  Eev.  Stat.  sec.  4288  [722]. 

It  was  argued  that  as  each  bill  of  lading,  drawn  up  and  signed  by 
the  carrier  and  assented  to  by  the  shipper,  contained  a  stipulation 
that  the  carrier  should  not  be  liable  for  losses  by  perils  of  the  sea 
arising  from  the  negligence  of  its  servants,  both  parties  must  be 
presumed  to  have  intended  to  be  bound  by  that  stipulation,  and  must, 
therefore,  the  stipulation  being  void  by  our  law  and  valid  by  the 
law  of  England,  have  intended  that  their  contract  should  be  governed 
by  the  English  law;  and  one  passage  in  the  judgment  in  Peninsular 
&  Oriental  Co.  v.  Shand  gives  some  color  to  the  argument.  3 
Moore  P.  C.  (n.  s.)  291.  But  the  facts  of  the  two  cases  are  quite 
different  in  this  respect.  In  that  case,  effect  was  given  to  the  law 
of  England,  where  the  contract  was  made;  and  both  parties  were 
English,  and  must  be  held  to  have  known  the  law  of  their  own 

1  3  :\Ioore  P.  C.  (x.  s.)  272. 

2  6  B.  &  S.  100  ;  s.  c.  L.  K.  1  Q.  B.  115. 
8  9  Q.  B.  D.  118,  and  10  Q.  B.  D.  521. 


206  CARRIERS   OF   GOODS. 

country.  In  this  case,  the  contract  was  made  in  this  country, 
between  parties  one  residing  and  the  other  doing  business  here;  and 
the  law  of  England  is  a  foreign  law,  which  the  American  shipper  is 
not  presumed  to  know.  Both  parties  or  either  of  them  may  have 
supposed  the  stipulation  to  be  valid;  or  both  or  either  may  have 
known  that  by  our  law,  as  declared  by  this  court,  it  was  void.  In 
either  aspect,  there  is  no  ground  for  inferring  that  the  shipper,  at 
least,  had  any  intention,  for  the  purpose  of  securing  its  validity, 
to  be  governed  by  a  foreign  law,  which  he  is  not  shown,  and  cannot 
be  presumed,  to  have  had  any  knowledge  of. 

(jur  conclusion  on  the  principal  question  in  the  case  may  be 
summed  up  thus.  Each  of  the  bills  of  lading  is  an  American  and  not 
an  English  contract,  and,  so  far  as  concerns  the  obligation  to  carry 
the  goods  in  safety,  is  to  be  governed  by  the  American  law,  and. not 
by  the  law,  municipal  or  maritime,  of  any  other  country.  By  our 
law,  as  declared  by  this  court,  tlie  stipulation  by  which  the  appel- 
lant undertook  to  exempt  itself  from  liability  for  the  negligence  of 
its  servants  is  contrary  to  jjublic  policy  and  therefore  void ;  and  the 
loss  of  the  goods  was  a  breach  of  the  contract,  for  which  the  shipper 
might  maintain  a  suit  against  the  carrier.  This  being  so,  the  fact 
that  the  place  where  the  vessel  went  ashore,  in  consequence  of  the 
negligence  of  the  master  and  officers  in  the  prosecution  of  the  voy- 
age, was  upon  the  coast  of  Great  Britain,  is  quite  immaterial. 


c.  Agreed  Valuation. 

GKAVES  V.    LAKE   SH(.)KE,    etc.    R.    CO. 

137  Mass.  33.     18S4. 

MoKTOx,  C.  J.  The  defcTidant,  as  a  common  carrier,  received  at 
I'eoria,  Illinois,  seventy-five  barrels  of  high  wines,  and  agrci-d  to 
deliver  them  to  the  plaintiffs  at  Boston,  in  this  Commonwealth. 
The  bill  of  lading  contained  the  stipulation  that  tlie  goods  were 
".shipped  at  an  agreed  valuation  of  .'g^O  per  bbl.,  owner's  risk  of 
leakage."  It  also  contained  tlie  agreement  tliat,  "in  the  event  of 
tlie  loss  of  any  property  for  which  responsibility  attaches  under  this 
bill  of  lading  to  the  carriers,  the  value  or  cost  of  the  same  at  the 
time  and  point  of  shipment  is  to  govern  the  settlement,  except  the 
vahie  of  the  articles  has  been  agreed  upon  with  the  shipper,  or  is 
determined  by  tlie  elassifieution  ujion  whieh  the  rates  are  based." 

The  defendant  had  no  knowledge  of  the  value  of  the  goods  except 
that  furnished  by  the  statement  of  the  shipi)er8,  and  tlie  charge  for 
transportation  was  based  ujjon  this  statement  and  valuation.     The 


LIMITATION    OF   LIABILITY.  207 

goods  were  destroyed  during  tlie  transit  by  a  collision  of  two  trains, 
occasioned  by  the  negligence  of  the  servants  of  the  defendant.  The 
only  question  presented  is  whether  the  plaintiffs  can  recover  any 
more  than  the  agreed  valuation  of  the  goods. 

The  question  whether  a  carrier  can,  by  a  special  contract,  exempt 
himself  from  liability  for  a  loss  arising  from  the  negligence  of  him- 
self or  his  servants,  is  one  which  has  been  much  discussed,  and 
upon  which  the  adjudications  are  conflicting.  If  we  adopt  the 
general  rule,  that  a  carrier  cannot  thus  exempt  himself  from  respon- 
sibility, we  are  of  the  opinion  that  it  does  not  cover  the  case  before 
us,  Avhich  must  be  governed  by  other  considerations.  The  defend- 
ant has  not  attempted  to  exempt  itself  from  liability  for  the  negli- 
gence of  its  servants.  It  has  made  no  contract  for  that  purpose, 
but  admits  its  responsibility;  its  claim  is,  that  the  plaintiffs, 
having  represented  and  agreed  that  the  goods  are  of  a  specified 
value,  and  having  thus  obtained  the  benefit  of  a  diminished  rate 
of  transportation,  are  now  estopped  to  claim,  in  contradiction  of 
their  representation  and  agreement,  that  the  goods  are  of  a  greater 
value. 

It  is  the  right  of  the  carrier  to  require  good  faith  on  the  part  of 
those  persons  who  deliver  goods  to  be  carried,  or  enter  into  con- 
tracts with  him.  The  care  to  be  exercised  in  transporting  property, 
and  the  reasonable  compensation  for  its  carriage,  depend  largely  on 
its  nature  and  value,  and  such  persons  are  bound  to  use  no  fraud  or 
deception  which  would  mislead  him  as  to  the  extent  of  the  duties 
or  the  risks  which  he  assumes.  It  is  just  and  reasonable  that 
a  carrier  should  base  his  rate  of  compensation,  to  some  extent,  upon 
the  value  of  the  goods  carried;  this  measures  his  risks,  and  is  an 
important  element  in  fixing  his  compensation.  If  a  person  volun- 
tarily represents  and  agrees  that  the  goods  delivered  to  a  carrier  are 
of  a  certain  value,  and  the  carrier  is  thereby  induced  to  grant  him 
a  reduced  rate  of  compensation  for  the  carriage,  such  person  ought 
to  be  barred  by  his  representation  and  agreement.  Otherwise,  he 
imposes  upon  the  carrier  the  obligations  of  a  contract  different  from 
that  into  which  he  has  entered.  Dunlap  v.  International  Steam- 
boat Co.,  98  Mass.  371;  Judson  v.  Western  Kailroad,  6  Allen, 
486  [185]. 

The  plaintiffs  admit  that  their  valuation  of  the  goods  would  be 
conclusive  against  them  in  case  of  a  loss  from  any  other  cause  than 
the  negligence  of  the  carrier  or  its  servants;  but  contend  that  the 
contract  does  not  fairly  import  a  stipulation  of  exemption  from 
responsibility  for  such  negligence.  We  cannot  see  the  justice  of 
this  distinction.  Looking  at  the  matter  practically,  everybody 
knows  that  the  charges  of  a  carrier  must  be  fixed  with  reference  to 
all  the  risks  of  the  carriage,  including  the  risk  of  loss  from  the 
negligence  of  servants.  In  the  course  of  time,  such  negligence  is 
inevitable,  and  the  business  of  a  carrier  could  not  be  carried  on  unless 


208  CAKFJERS    OF    GOODS. 

he  includes  this  risk  in  fixing  his  rates  of  compensation.  "When  the 
parties  in  this  case  made  their  contract,  it  is  fair  to  assmne  that 
both  had  in  mind  all  the  usual  risks  of  the  carriage.  It  savors  ot 
refinement  to  suppose  that  thej'  understood  that  the  valuation  of  the 
goods  was  to  be  deemed  to  be  fixed  if  a  loss  occurred  from  some 
causes,  but  not  fixed  if  it  occurred  from  the  negligence  of  the  ser- 
vants of  the  carrier.  Such  does  not  seem  to  us  to  be  the  fair  con- 
struction of  the  contract. 

The  plaintiffs  voluntarily  entered  into  the  contract  with  the 
defendant;  no  advantage  was  taken  of  them;  they  deliberately 
rei»resented  the  value  of  the  goods  to  be  320  per  barrel.  Tlie  com- 
pensation for  carriage  was  fixed  upon  this  value;  the  defendant  is 
injured  and  the  plaintiffs  are  benefited  by  this  valuation,  if  it  can 
now  be  denied.  We  are  of  opinion  that  the  plaintiffs  are  estopped 
to  show  that  it  was  of  greater  value  than  that  represented.  The 
j)laintiffs  cannot  recover  a  larger  sum  without  violating  their  own 
agreement.  Although  one  of  the  indirect  effects  of  such  a  contract 
is  to  limit  the  extent  of  the  responsibility  of  the  carrier  for  the 
negligence  of  his  servants,  this  was  not  the  purpose  of  the  contract. 
"We  cannot  see  that  any  considerations  of  a  sound  public  policy 
require  that  such  contracts  should  be  held  invalid,  or  that  a  jjcrson, 
who  in  such  contract  fixes  a  value  upon  his  goods  wliicli  he  intrusts 
to  the  carrier,  should  not  be  bound  by  his  valuation.  M'Cance  v. 
London  &  North  "U^estern  Railway,  7  H.  &  N.  4.'37;  s.  c.  3  H.  &  C. 
34.3;  Railroad  v.  Fraloff,  100  U.  S.  24  [41];  ^luser  v.  Holland,  17 
Blatchf.  C.  C.  412;  s.  c.  1  Fed.  Rep.  382;  Hart  v.  IVnnsylvania 
Railroad,  2  McCrary,  333;  s.  c.  7  Fed.  Rep.  G30;  Magnin  v.  Dins- 
more,  70  N.  Y.  41(>. 

We  are  therefore  of  opinion,  upon  the  facts  of  this  case,  that  it 
was  not  competent  for  the  ])laintitt's  to  sliow  that  the  value  of  the 
goods  lost  was  greater  than  S2o  per  barrel.^ 

Jnd'jntint  iifliniicfl . 

1  Ace.  :  Hart  v.  Wun'n.  K.  Co..  llli  I'.  S.  331  ;  Ballou  v.  Fjirle,  17  K.  I.  411. 

With  ^Tt-at  deference  for  these  who  may  dilfer  with  us,  we  think  it  entirely 
illogical  and  unrca.sonahlc  to  wiy  that  the  carrier  viay  not  absolve  itself  from  liahility 
for  the  whole  value  of  jirojterty  lost  or  destroyed  throuj,'h  its  nej;ligencc,  but  that 
it  mtiy  absolve  itself  from  resjionsibility  for  one-half,  three-fourllis,  seven-eighths, 
nine-tenths,  or  ninety-hun<lredths  of  the  loss  so  occasioned.  With  great  unaniinity 
the  authorities  say  it  cannot  ilo  i\n-  former,  if  allowed  to  do  the  httli-r,  it  may  then-by 
Hubstantially  evade  and  nullify  the  law  which  says  it  shall  not  do  the  former,  ami  in 
that  way  do  indirectly  what  it  is  forbidden  to  do  directly.  We  hold  tliat  it  can  <lo 
neither.  The  re(|uirement  of  the  law  has  ever  been,  and  is  now,  that  the  common 
earner  shnll  Ik;  diligent  and  careful  in  the  transportation  of  its  freight,  and  jiubliir 
IK/licy  forbids  that  it  shall  throw  off  that  ol)ligatioii,  whetlicr  by  stijiulation  for 
exemption  in  whole  or  tn  part  from  the  conserpiences  of  its  negligent  act**.  This  view 
iji  RUntJiined  by  sound  reason,  and  also  by  the  weight  of  autliDrity.  Coward  v.  \h\.\\- 
road  Omiirtiny,  16  I.oa,  225  ;  Moulton  i-.  St.  I'.,  M.  and  .M.  Itiilway  C'omjiany,  31 
Minn.  85;  liailroad  Company  v.  .Simjison,  30  Kan.  645  ;  Kniln-ad  Company  v.  Abies, 
CO  MiH«.  1017  ;   U.  8.  Exprcis  C-mpany  i-.  Ulnrkman,  28  Ohio  St.  Mi;    Ulark  r.  G. 


LIMITATION   OF  LIABILITY.  209 

McFADDEX  v.   MISSOURI  PACIFIC   R.    CO. 
92  Mo.  343.     1887. 

Ray,  J 

But  the  stipulation  in  the  contract  of  shipment,  most  relied  on  for 
a  reversal  of  the  judgment,  is  the  one  declaring  the  company  should 
not  be  liable  for  more  than  one  hundred  dollars  per  head  for  the 
mules.  Such  a  stipulation,  it  is  claimed,  is  valid  and  binding,  and 
does  not  contravene  the  rule  which  forbids  the  carrier  to  stipulate 
against  his  own  negligence.  Numerous  decisions  sustain  such  stipu- 
lations, when  fairly  made,  and  when  the  parties  agree  on  a  fixed 
valuation  of  the  property,  and  a  special  and  reduced  rate  of  freight 
is  given  and  received,  based  upon  the  condition  that  the  carrier 
assumes  liability  only  to  the  extent  of  the  agreed  value  of  the  prop- 
erty.    Hart  V.  Railroad,  112  U.  S.  331,  and  cases  cited. 

Other  decisions  deny  the  validity  of  such  provisions,  and  hold 
them  void,  as  releasing  the  carrier  from  the  full  and  proper  liability 
for  the  consequences  of  his  negligence.  Black  i\  Trans.  Co.,  55 
Wis.  319;  Moulton  v.  Railroad,  31  Minn.  85;  U.  S.  Express  Co.  v. 
Backman,  28  Ohio  St.  144.  Hutchinson  on  Carriers  says,  in  sub- 
stance, that  the  cases  cited  by  him  as  recognizing  the  right  of  the 
carrier  to  thus  limit  the  liability  as  to  value  occur  in  States  in  which 
the  law  permits  the  carrier,  by  special  and  express  contract,  to 
relieve  himself  of  the  consequences  of  his  negligence  in  the  carriage 
of  goods,  and  that  these  cases  must  not  be  considered  controlling 
authority  in  those  States  in  which  such  claim  to  exemption  is  not 
permitted  to  be  made.     Sees.  247,  250. 

But,  even  under  the  rule  declared  in  the  former  class  of  decisions, 
these  provisions,  thus  employed  and  resorted  to  by  common  carriers 
to  restrict  their  liability,  are  to  be  tested  by  their  fairness,  justice, 
and  reasonableness.  We  will  consider  the  case  before  us  briefly 
under  this  view.  The  answer  charges  that  defendant  agreed  to 
transport  the  mules  for  plaintiff,  between  said  points,  at  the  rate  of 

T.  Company,  55  Wis.  319  ;  A.  G.  S.  Eailroad  v.  Little,  71  Ala.  611.  See  also 
Rosenfiekl  v.  Railway  Company,  103  Ind.  121  ;  M.  P.  Railroad  Company  v.  Fagan,  35 
Am.  and  Eng.  Eailroad  Cases,  666  ;  97  111.  525  ;   s.  c.  34  Am.  R.  197. 

The  rule  is  the  same  now,  except  that  in  this  day  of  special  contracts  it  has  been 
relaxed  so  that  the  carrier  may  exonerate  itself  from  responsibility  by  either  showing 
that  the  case  falls  within  one  of  the  exceptions  of  the  common  law  or  within  one  of 
the  stipulations  of  the  special  contract.  2  Greenleaf  Evi.,  sec.  219  ;  52  Ala.  606  ; 
71  Ala.  611  ;  7  Yer.  340  ;  8  Hum.  498  ;  9  Rax.  188  ;  2  Lea,  296  ;  2  Pickle,  393  ; 
63  Pa.  St.  14;  36  Minn.  539  ;  s.  c.  1  Am.  St.  R.  692  :  60  Miss.  1017  :  28  Ohio  St. 
144  ;  55  Wis.  319  ;  Lawson  on  Con.  of  Car.,  sees.  24.5,  246,  247,  and  248  ;  Hutchin- 
son on  Car.  sec.  764  ;  Schouler  on  Bail,  and  Car.,  sec.  439 

Caldwell,  J.,  in  Railway  Co.  u.  Wynn,  88  Tenn.  320.     1889. 

14 


210  CAKRIERS   OF   GOODS. 

thirty-one  dollars  per  car,  whieli  was  charged  to  be  a  special  and 
reduced  rate,  lower  than  the  regular  rate.  The  written  contract, 
read  in  evidence,  recited  that  the  said  rate  was  a  reduced  rate,  made 
in  consideration  of  agreement,  etc.    ...... 

The  reduced  rate,  if  such  it  was,  was  the  consideration  for  the 
exemption  from  liability  beyond  the  one  hundred  dollars,  even  in 
case  of  injury  and  loss  from  defendant's  negligence,  and  parol  evi- 
dence in  that  behalf  is,  we  think,  competent  and  admissible  for  the 
purpose  indicated.  The  consideration  clause  in  bills  of  lading,  con- 
tracts, deeds,  and  other  instruments,  ordinarily,  has  only  the  force 
and  effect  of  a  receipt,  and  is  open  to  explanation  and  contradiction 
by  parol  evidence.  Hutchinson  on  Carriers,  sees.  122,  123;  Fontaine 
V.  Boatman's  Sav.  Inst.,  57  :Mo.  552;  Hollocher  v.  Hollocher,  62 
Mo.  2G7;  Edwards  c.  Smith,  03  Mo.  119. 

If,  in  the  one  case,  it  is  competent  for  the  carrier  to  show  that 
the  real  value  of  the  property  was  concealed,  and  the  lower  rate  thus 
secured  by  the  fraud  or  deceit  of  the  shipper,  why  may  not  the 
shipper  be  permitted  to  show  that  the  alleged  reduced  rate,  in  con- 
sideration of  which  he  surrendered  obligation  imposed  by  law  upon 
the  carrier,  as  an  insurer  of  the  property,  was  false  and  in  fact  no 
reduced  rate  at  all?  It  may  be  that  plaintiff  was  not  deceived  by  it, 
at  the  time,  as  he  did  not  ask  for,  or  suppose  he  was  getting  a  reducetl 
rate,  but  if  the  pretended  lower  rate  was  the  usual  rate,  and  known 
to  be  such  to  both  parties,  it  would  work  a  fraud  upon  the  rights  of 
plaintiff,  under  the  law,  if  the  defendant  Avere  i)ermitted  to  treat  it 
as  a  lower  rate,  and  to  thus  deprive  plaintiff  of  important  rights, 
and  thus  secure  release  of  part  of  its  liability,  by  reason  thereof. 


d.    Time  for  rhilmiii'j  damages. 

EXI'IIESS   CO.    V.    CALDWKLE. 
21  Wall.  (U.  S.),  -Jfil.     1S71. 

rAM.WKLL  sued  tlie  Southern  Exj.ress  Company  in  the  court  below, 
a-s  a  common  carrier,  for  its  failure  to  deliver  at  New  ( )rleans  a  pack- 
age received  bv  it  on  the  2.3d  day  of  April,  1^02,  at  Jackson,  Tennes- 
see,—placos  the  transit  b.-twcn  wliirli  requires  only  about  one  day. 
The  company  pleaded  that  when  the  ]nickage  was  received  "  it  was 
agreed  between  the  company  and  the  ])laintiff,  .ind  made  one  of  tliH 
express  conditions  ui)on  whifli  the  package  w.as  received,  that  the 
company  sliould   not  bo  licld  liable  for  any  loss  of,  or  damage  to, 


LIMITATION    OF   LIABILITY.  211 

the  package  whatever,  unless  claim  should  Ije  made  therefor  within 
ninety  days  from  its  delivery  to  it."  The  plea  further  averred  that 
no  claim  was  made  upon  the  defendant,  or  upon  any  of  its  agents, 
until  the  year  18CS,  more  than  ninety  days  after  the  delivery  of  the 
package  to  the  company,  and  not  until  the  present  suit  was  brought. 
To  the  plea  thus  made  the  plaintiff  demurred  generally,  and  the 
Circuit  Court  sustained  the  demurrer,  giving  judgment  thereon 
against  the  company.  Whether  this  judgment  was  correct  was  the 
question  now  to  be  passed  on  here. 

Mr.  Justice  Stroxg.  Notwithstanding  the  great  rigor  with  which 
courts  of  law  have  always  enforced  the  obligations  assumed  by  com- 
mon carriers,  and  notwithstanding  the  reluctance  with  which  modi- 
fications of  that  responsibility,  imposed  upon  them  by  public  policy, 
have  been  allowed,  it  is  undoubtedly  true  that  special  contracts  with 
their  employers  limiting  their  liability  are  recognized  as  valid,  if  in 
the  judgment  of  the  courts  they  are  just  and  reasonable,  —  if  they 
are  not  in  conflict  with  sound  legal  policy.  The  contract  of  a  com- 
mon carrier  ordinarily  is  an  assumption  by  him  of  the  exact  duty 
which  the  law  affixes  to  the  relation  into  which  he  enters  when  he 
undertakes  to  carry.  That  relation  the  law  regards  as  substantially 
one  of  insurance  against  all  loss  or  damage  except  such  as  results 
from  what  is  denominated  as  the  act  of  God  or  of  the  public  enemy. 
But  the  severe  operation  of  such  a  rule  in  some  cases  has  led  to  a 
relaxation  of  its  stringency,  when  the  consignor  and  the  carrier 
agree  to  such  a  relaxation.  All  the  modern  authorities  concur  in 
holding  that,  to  a  certain  extent,  the  extreme  liability  exacted  by 
the  common  law  originally  may  be  limited  by  express  contract.  The 
difficulty  is  in  determining  to  what  extent,  and  here  the  authorities 
differ.  Certainly  it  ought  not  to  be  admitted  that  a  common  carrier 
can  be  relieved  from  the  full  measure  of  that  responsibility  which 
ordinarily  attends  his  occupation  without  a  clear  and  express  stipu- 
lation to  that  effect  obtained  by  him  from  his  employer.  And  even 
when  such  a  stipulation  has  been  obtained,  the  court  must  be  able  to 
see  that  it  is  not  unreasonable.  Common  carriers  do  not  deal  with 
their  employers  on  equal  terms.  There  is,  in  a  very  important 
sense,  a  necessity  for  their  employment.  In  many  cases  they  are 
corporations  chartered  for  the  promotion  of  the  public  convenience. 
They  have  possession  of  the  railroads,  canals,  and  means  of  trans- 
portation on  the  rivers.  They  can  and  they  do  carry  at  much 
cheaper  rates  than  those  which  private  carriers  must  of  necessity 
demand.  They  have  on  all  important  routes  supplanted  private 
carriers.  In  fact,  they  are  without  competition,  except  as  between 
themselves,  and  that  they  are  thus  is  in  most  cases  a  consequence  of 
advantages  obtained  from  the  public.  It  is,  therefore,  just  that 
they  are  not  allowed  to  take  advantage  of  their  powers  and  of  tlie 
necessities  of  the  public  to  exact  exemptions  from  that  measure  of 
duty  which  public   policy  demands.     But   that  which  was   public 


212  CARRIERS   OF   GOODS. 

policy  a  hundred  years  ago  has  undergone  changes  in  tlie  progress 
of  material  and  social  civilization.  There  is  less  danger  than  there 
was  of  collusion  with  highwaymen.  Intelligence  is  more  rapidly 
diffused.  It  is  more  easy  to  trace  a  consignment  than  it  was.  It 
is  more  difficult  to  conceal  fraud.  And,  what  is  of  equal  importance, 
the  business  of  common  carriers  has  been  immensely  increased  and 
subdivided.  The  carrier  who  receives  goods  is  very  often  not  the 
one  who  is  expected  to  deliver  them  to  the  ultimate  consignees.  He 
is  but  one  link  of  a  chain.  Thus  his  hazard  is  greatly  increased. 
His  employers  demand  that  he  shall  be  held  responsible,  not  merely 
for  his  own  acts  and  omissions,  and  those  of  his  agents,  but  for 
those  of  other  carriers  whom  he  necessarily  employs  for  completing 
the  transit  of  goods.  Hence,  as  we  have  said,  it  is  now  the  settled 
law  that  the  responsibility  of  a  common  carrier  may  be  limited  by 
an  express  agreement  made  with  his  employer  at  the  time  of  his 
acceyjting  goods  for  transportation,  provided  the  limitation  be  such 
as  the  law  can  recognize  as  reasonable  and  not  inconsistent  with 
sound  public  policy.  This  subject  has  been  so  fully  considered  of 
late  in  tliis  court  that  it  is  needless  to  review  the  authorities  at  large. 
In  York  Company  r.  The  Central  Railroad  Company,*  it  is  ruled 
that  the  common-law  liability  of  a  common  carrier  may  be  limited 
and  qualified  by  special  contract  with  the  owner,  provided  such 
special  contract  do  not  attempt  to  cover  losses  by  negligence  or 
misconduct.  And  in  a  still  later  case,  Eailroad  Company  v.  Lock- 
wood,  ^  where  the  decisions  are  extensively  reviewed,  the  same 
doctrine  is  asserted.  The  latter  case,  it  is  true,  involved  mainly  an 
inquiry  into  the  reasonableness  of  an  exception  stipulated  for,  but 
it  unequivocally  accepted  the  rule  asserted  in  the  first-mentioned 
case.  The  question,  then,  which  is  presented  to  us  by  this  record 
is,  whether  the  stipulation  asserted  in  the  defendant's  plea  is  a 
reasonable  one,  not  inconsistent  with  sound  public  policy. 

It  may  be  remarked,  in  the  first  place,  that  the  stipulation  is  not 
a  conventional  limitation  of  the  right  of  the  carrier's  employer  to 
sue.  He  is  left  at  liberty  to  sue  at  any  time  within  the  period  fixed 
by  the  Statute  of  Limitations.  He  is  only  required  to  make  his 
claim  within  ninety  days,  in  season  to  enable  the  carrier  to  ascer- 
tain what  the  facts  are,  and,  having  made  his  claim,  he  may  delay 
his  suit. 

It  may  also  be  remarked  tliat  the  contract  is  not  a  stipulation  for 
exemption  from  responsil)ility  for  the  defendants'  negligence,  or  for 
that  of  their  servants.  It  is  freely  conceded  that  had  it  been  sucli, 
it  would  have  been  against  the  policy  of  the  law,  and  inoperative. 
Such  was  our  opinion  in  Kailroad  Company  p.  Lockwood.  A  com- 
mon carrier  is  always  responsible  for  his  negligence,  no  matter 
what  his  stipulation  may  be.  But  an  agreement  th:it  in  casr  of 
failure  by  the  carrier  to  deliver  the  goods,  a  claim  shall  be  made  by 
»  3  Wallace,  107.  ^  1"  M-  357. 


LIMITATION   OF   LIABILITY.  213 

the  bailor,  or  by  the  consignee,  within  a  specified  period,  if  that 
period  be  a  reasonable  one,  is  altogether  of  a  different  character.  It 
contravenes  no  public  policy.  It  excuses  no  negligence.  It  is  per- 
fectly consistent  with  holding  the  carrier  to  the  fullest  measure  of 
good  faith,  of  diligence,  and  of  capacity,  which  the  strictest  rules  of 
the  common  law  ever  required.  And  it  is  intrinsically  just,  as 
applied  to  the  present  case.  The  defendants  are  an  express  com- 
pany. We  cannot  close  our  eyes  to  the  nature  of  their  business. 
They  carry  small  parcels  easily  lost  or  mislaid,  and  not  easily  traced. 
They  carry  them  in  great  numbers.  Express  companies  are  modern 
conveniences,  and  notoriously  they  are  very  largely  employed. 
They  may  carry,  they  often  do  carry  hundreds,  even  thousands  of 
packages  daily.  If  one  be  lost,  or  alleged  to  be  lost,  the  difficulty 
of  tracing  it  is  increased  by  the  fact  that  so  many  are  carried,  and 
it  becomes  greater  the  longer  the  search  is  delayed.  If  a  bailor 
may  delay  giving  notice  to  them  of  a  loss,  or  making  a  claim  indefi- 
nitely, they  may  not  be  able  to  trace  the  parcels  bailed,  and  to 
recover  them,  if  accidentally  missent,  or  if  they  have  in  fact  been 
properly  delivered.  With  the  bailor  the  bailment  is  a  single  trans- 
action, of  which  he  has  full  knowledge;  with  the  bailee,  it  is  one  of 
a  multitude.  There  is  no  hardship  in  requiring  the  bailor  to  give 
notice  of  the  loss  if  any,  or  make  a  claim  for  compensation  within  a 
reasonable  time  after  he  has  delivered  the  parcel  to  the  carrier. 
There  is  great  hardship  in  requiring  the  carrier  to  account  for  the 
parcel  long  after  that  time,  when  he  has  had  no  notice  of  any  failure 
of  duty  on  his  part,  and  when  the  lapse  of  time  has  made  it  difficult, 
if  not  impossible,  to  ascertain  the  actual  facts.  For  these  reasons 
such  limitations  have  been  held  valid  in  similar  contracts,  even  when 
they  seem  to  be  less  reasonable  than  in  the  contracts  of  common 
carriers. 

Policies  of  fire  insurance,  it  is  well  known,  usually  contain  stipu- 
lations that  the  insured  shall  give  notice  of  a  loss,  and  furnish 
proofs  thereof  within  a  brief  period  after  the  fire,  and  it  is  undoubted 
that  if  such  notice  and  proofs  have  not  been  given  in  the  time  desig- 
nated or  have  not  been  waived,  the  insurers  are  not  liable.  Such 
conditions  have  always  been  considered  reasonable,  because  they 
give  the  insurers  an  opportunity  of  inquiring  into  the  circumstances 
and  amount  of  the  loss,  at  a  time  when  inquiry  may  be  of  service. 
And,  still  more,  conditions  in  policies  of  fire  insurance  that  no  action 
shall  be  brought  for  the  recovery  of  a  loss  unless  it  shall  be  com- 
menced within  a  specified  time,  less  than  the  statutory  period  of 
limitations,  are  enforced,  as  not  against  any  legal  policy.^ 

Telegraph  companies,  though  not  common  carriers,  are  engaged 
in  a  business  that  is  in  its  nature  almost,  if  not  quite,  as  important 
to  the  public  as  that  of  carriers.     Like  common  carriers,  they  cannot 

1  See  Riddlesbarger  v.  Hartford  lusurauce  Company,  7  Wallace,  386,  aud  the 
numerous  cases  therein  cited. 


214  CAKUIEKS    OF    GOODS. 

contract  with  their  employers  for  exemption  from  liability  for  the 
consequence  of  their  own  negligence.  But  they  may  by  such  con- 
tracts, or  by  their  rules  and  regulations  brought  to  the  knowledge 
of  their  employers,  limit  the  measure  of  their  resi)onsibility  to  a 
reasonable  extent.  ^Yhether  their  rules  are  reasonable  or  unreason- 
able must  be  determined  with  reference  to  public  policy,  precisely 
as  in  the  case  of  a  carrier.  And  in  Wolf  v.  The  "Western  Union 
Telegraph  Company,*  a  case  where  one  of  the  conditions  of  a  tele- 
graph company,  printed  in  their  blank  forms,  was  that  the  company 
would  not  be  liable  for  damages  in  any  case  where  the  claim  was 
not  presented  in  writing  within  sixty  days  after  sending  the  mes- 
sage, it  was  ruled  that  the  condition  was  binding  on  an  employer  of 
the  company  who  sent  his  message  on  the  printed  form.  The  con- 
dition printed  in  the  form  was  considered  a  reasonable  one,  and  it 
was  held  that  the  employer  must  make  claim  according  to  the  con- 
dition, before  he  could  maintain  an  action.  Exactly  the  same  doc- 
trine was  asserted  in  Young  v.  Tlie  Western  Union  Telegraph 
Company. - 

In  Lewis  r.  The  Great  Western  Railway  Company,'  which  was 
an  action  against  the  company  as  common  carriers,  the  court  sus- 
tained as  reasonable  stipulations  in  a  bill  of  lading,  that  "  no  claim 
for  deficiency,  damage,  or  detention  would  be  allowed,  unless  made 
within  three  days  after  the  delivery  of  the  goods,  nor  for  loss,  unless 
made  within  seven  days  from  the  time  they  should  have  been 
delivered."  Under  the  last  clause  of  this  condition  the  onus  was 
imposed  upon  the  sliipper  of  ascertaining  whether  the  goods  had 
been  delivered  at  tlie  time  they  should  have  been,  and  in  case  they 
had  not,  of  making  his  claim  within  seven  days  thereafter.  In  the 
case  we  have  now  in  hand  the  agreement  pleaded  allowed  ninety 
days  from  the  delivery  of  the  parcel  to  the  company,  within  wliioh 
the  claim  might  be  made,  and  no  claim  was  made  until  four  years 
thereafter.  Possibly  such  a  condition  might  be  regarded  as  unrea- 
sonable, if  an  insufficient  time  were  allowed  for  the  shipjjer  to  learn 
whether  the  carrier's  contract  had  been  performed,  lint  that  can- 
not be  claimed  here.  The  parcel  was  received  at  Jackson,  Ten- 
nessee, for  delivery  at  New  Orleans.  The  transit  rerpiired  only 
about  one  day.  W»'  think,  tlicrefore,  tlie  limitation  of  the  defend- 
ants'common-law  liability,  t(j  whicli  the  parties  agreed,  as  averrctl 
in  the  plea,  was  a  reasonable  one,  and  that  the  plea  set  up  a  sulficifiii 
defence  to  the  action. 

We  liave  been  referred  to  one  case  wliich  seems  to  intimate,  and 
perliaps  should  be  regarded  as  deciding,  that  a  stijiulation  somcwliat 
like  that  jtleaded  here  is  insufficient  to  protect  the  carrier.  It  is 
the  Southern  Express  Cora])any  v.  Caj)erton.*  There  the  receipts 
for  the  goods  contained  a  provision  that  there  should  be  no  lialiility 

«  62  IVnnnylvanin  SUtr,  83.  »  34  New  York  Siii.trior  Court,  3»0. 

*  5  HurUtonc  &  Norman,  867.  *  44  Ala»MHim,  101. 


LIMITATION    OF   LIABILITY.  215 

for  any  loss  unless  the  claim  therefor  should  be  made  in  writing,  at 
the  office  of  the  company  at  Stevenson,  within  thirty  days  from  the 
date  of  the  receipt,  in  a  statement  to  which  the  receipt  should  be 
annexed.  The  receipt  was  signed  by  the  agent  of  the  company 
alone.  It  will  be  observed  that  it  was  a  much  more  onerous  require- 
ment of  the  shipper  than  that  made  in  the  present  case,  and  more 
than  was  necessary  to  give  notice  of  the  loss  to  the  carrier.  The 
court,  after  remarking  that  a  carrier  cannot  avoid  his  responsibility 
by  any  mere  general  notice,  nor  contract  for  exemption  from  liabili- 
ties for  his  negligence  or  that  of  his  servants,  added  that  he  could 
not  be  allowed  to  make  a  statute  of  limitations  so  short  as  to  be 
capable  of  becoming  a  means  of  fraud;  that  it  was  the  duty  of  the 
"  defendant  to  deliver  the  package  to  the  consignee,  and  that  it  was 
more  than  unreasonable  to  allow  it  to  appropriate  the  property  of 
another  by  a  failure  to  perform  a  duty,  and  that  too  under  the  pro- 
tection of  a  writing  signed  only  by  its  agent,  the  assent  to  which  by 
the  other  party  was  only  proven  by  his  acceptance  of  the  paper." 
This  case  is  a  very  unsatisfactory  one.  It  appears  to  have  regarded 
the  stipulation  as  a  statute  of  limitations,  which  it  clearly  w^as  not, 
and  it  leaves  us  in  doubt  whether  the  decision  was  not  rested  on 
the  ground  that  there  was  no  sufficient  evidence  of  a  contract.  The 
case  cited  from  .36  Georgia,  5.32,  has  no  relation  to  the  question 
before  us.  It  has  reference  to  the  inquiry,  what  is  sufficient  proof 
of  an  agreement  between  the  shipper  and  the  carrier,  an  inquiry 
that  does  not  arise  in  the  present  case,  for  the  demurrer  admits  an 
express  agreement. 

Our  conclusion,  then,  founded  upon  the  analogous  decisions  of 
courts,  as  well  as  upon  sound  reason,  is  that  the  express  agreement 
between  the  parties  averred  in  the  plea  was  a  reasonable  one,  and 
hence  that  it  was  not  against  the  policy  of  the  law.  It  purported 
to  relieve  the  defendants  from  no  part  of  the  obligation  of  a  common 
carrier.  They  were  bound  to  the  same  diligence,  fidelity,  and  care 
as  they  would  have  been  required  to  exercise  if  no  such  agreement 
had  been  made.  All  that  the  stipulation  required  was  that  the 
shipper,  in  case  the  package  was  lost  or  damaged,  should  assert  his 
claim  in  season  to  enable  the  defendants  to  ascertain  the  facts;  in 
other  words,  that  he  should  assert  it  within  ninety  days.  It  follows 
that  the  Circuit  Court  erred  in  sustaining  the  plaintiff's  demurrer 
to  the  plea. 

Judgment  reversed. 


216  CARKIERS   OF   GOODS. 

SPKAGUE   I'.    MISSOUKT   PACIFIC   K.    CO. 
34  Kau.  347.     1S85. 

Action-  by  Sprague  against  the  Eailway  Company,  to  recover 
§5(X)  damages.  Judgment  for  defendant.  Plaintiff  brings  the  case 
here.     The  opinion  states  the  material  facts. 

Jonx.sTox,  J.  S.  Sprague  brouglit  this  action  in  the  District 
Court  of  Cloud  County  against  tlie  ^Missouri  Pacific  Railway  Com- 
pany, alleging,  in  substance,  that  the  defendant  was  a  common 
carrier,  and  that  on  or  about  the  2d  day  of  March,  1883,  for  a  valu- 
able consideration,  the  railway  company  undertook  and  agreed  with 
the  plaintiff  to  safely  carry  over  its  road  from  Atchison  to  Con- 
cordia certain  stock,  goods,  wares,  and  merchandise;  that  he 
delivered  the  property  mentioned  for  shipment  in  good  condition  at 
Atchison,  but  the  defendant  negligently  and  carelessly  managed 
the  car  upon  wliich  the  projjerty  was  shipped,  and  V)y  reason  of  such 
negligence  and  without  any  fault  on  the  jtart  of  the  plaintiff,  four  of 
the  horses  so  shipi)ed  by  the  plaintiff"  were  thrown  down,  bruised, 
and  injured  so  that  one  of  them  died,  and  the  others  were  more  or 
less  disabled,  to  the  damage  of  jdaiutiff  in  the  sum  of  S50(>.  The 
railway  company  denied  the  allegations  of  negligence,  and  the  terms 
of  the  contract  as  stated  by  tlie  i»hiintiff",  and  alleged  that  tlie  prop- 
erty had  been  shipped  in  accordance  with  the  terms  of  a  special 
agreement  entered  into  between  the  plaintiff  and  the  defendant, 
wherein  it  was  stated  tliat  the  company  transported  livestock  only 
in  accordance  with  certain  rules  and  regulations,  which  were  men- 
tioned, and  that,  in  consideration  that  tlie  defendant  company  would 
transport  for  the  said  plaintiff  the  said  property  at  the  rate  of  630 
per  car,  the  same  being  a  special  rate  lower  than  the  regular  rate 
mentioned  in  the  freight  tariff  of  the  railway  company,  and  other 
considerations,  the  plaintiff'  agreed  to  relea.se  the  defendant  from 
some  of  the  resiKinsibility  and  risks  imi)Osed  by  law  upon  the  rail- 
way company  when  acting  as  a  common  carrier.  The  contract  is  set 
out  at  length  in  the  answer,  and  it  provided  that  the  plaintiff'  should 
load  and  unload  his  stock  at  his  own  risk,  ami  feed,  water,  and  attend 
to  tlie  same  at  liis  own  expen.se.  IIi-  was  also  to  ac.conii)any  and 
care  for  the  stock  while  it  was  being  transjtorted  over  the  di'l'md- 
ant's  road,  and  for  that  jjurpose  the  railway  company  was  to  furnish 
the  plaintitr  free  transport.ition  over  its  road  for  one  person  from 
the  ]»oint  of  sliipment  to  the  destination. 

Among  the  stipuhitions  of  the  contract  is  the  following:  — 

"And  for  the  consideration  before  mentioned,  said  jKirty  of  the 

second  part  further  agrees  that  as  a  condition  ])recedent  to  liis  right 

to  recover  any  dan)ageH  for  any  loss  or  injury  tr)  said  stock,  he  will 

give  notice  in  writing  of  his  claim  therefor  to  some  olVu'er  of  said 


LIMITATION   OF   LIABILITY.  217 

party  of  the  first  part,  or  its  nearest  station  agent,  before  said  stock 
is  removed  from  the  place  of  destination  above  mentioned,  or  from 
the  place  of  the  delivery  of  the  same  to  the  said  party  of  the  second 
part,  and  before  such  stock  is  mingled  with  other  stock." 

The  defendant  then  alleged  that  the  horses  were  unloaded  and 
taken  from  the  car  at  Clifton  by  the  duly-authorized  agent  of  the 
plaintiff,  who  refused  the  defendant  the  right  to  transport  the  same 
to  Concordia,  and  that  when  he  obtained  possession  of  the  same  he 
was  well  aware  of  their  condition,  and  well  knew  whether  they  had 
sustained  any  injury  or  damage;  and  that  neither  the  plaintiff  nor 
any  one  acting  for  him,  prior  to  the  commencement  of  this  action, 
made  any  demand  in  writing  for  any  damages  sustained  to  said 
stock,  and  never  at  any  time  gave  any  notice  in  writing  of  plaintiff's 
claim  for  any  damages,  loss,  or  injuries  to  said  stock,  to  defendant, 
or  any  of  its  officers  or  agents.  The  reply  of  the  plaintiff  was  a 
general  denial,  not  verified.  Upon  the  trial  it  was  expressly  admitted 
that  the  special  contract  set  up  in  defendant's  answer  was  signed 
and  executed  by  the  duly-authorized  agents  of  the  parties,  and  it 
was  further  admitted  that  if  the  plaintiff  is  entitled  to  recover  under 
the  contract  for  the  injuries  alleged  by  the  plaintiff,  the  amount  of 
such  recovery  should  be  ^300.  Testimony  was  then  offered  by  the 
plaintiff  to  the  effect  that  the  horses  were  in  good  condition  when 
delivered  to  the  railway  company  at  Atchison,  Kansas.  His 
brother  was  given  a  free  pass  over  the  road  and  accompanied  the 
train  upon  which  the  horses  were  shipped,  for  the  purpose  of  caring 
for  the  stock  while  it  was  being  transported  over  the  defendant's 
road.  At  several  points  on  the  route  he  inspected  them,  and  found 
them  to  be  still  in  good  condition.  At  the  station  named  Palmer, 
some  distance  east  of  Concordia,  the  horses  were  again  examined  by 
the  plaintiff's  brother,  and  were  then  all  right,  and  after  returning 
to  the  caboose  and  before  leaving  that  station,  he  felt  several  jars , 
but  was  unable  to  state  what  occasioned  them,  or  whether  the  horses 
were  injured  thereby.  Upon  arriving  at  Clifton,  the  next  station, 
he  again  examined  the  horses  and  found  that  some  of  them  were 
lying  down,  and  apparently  injured.  He  then  demanded  of  the 
conductor  that  the  car  in  which  the  horses  were  shipped  should  be 
backed  up  to  the  stockyards  in  order  that  the  horses  might  be 
removed  from  the  car.  This  was  done,  when  the  horses  were 
unloaded  and  found  to  be  considerably  bruised.  He  then  refused  to 
reload  the  horses  upon  the  car,  took  possession  of  them,  and  caused 
them  to  be  taken  across  the  country  to  the  plaintiff"' s  farm,  which 
was  not  far  distant.  The  plaintiff  further  testified  that  when  the 
car  reached  Concordia,  he  paid  the  price  agreed  upon  for  the  trans- 
portation of  the  same ;  but  that  no  notice  has  ever  been  given  to  the 
conductor  of  that  train,  or  to  any  officer  or  agent  of  the  railway 
company,  prior  to  the  commencement  of  this  action,  that  he  claimed 
any  damages  for  the  injury  to  his  stock;  that  he  knew  the  condition 


218  CARRIERS   OF   GOODS. 

of  the  horses  and  the  extent  of  the  injury  to  them  before  they  were 
taken  to  the  farm,  and  yet  he  had  not  given  any  notice  of  any  claim 
therefor.  When  the  plaintitf  closed  his  testimony,  the  railway 
comi)any  interposed  a  deniuner  to  the  evidence,  which  the  court, 
after  consideration,  sustained. 

Upon  this  ruling- the  plaintiff  raises  and  discusses  several  ques- 
tions here,  but  as  one  of  them  disposes  of  the  case,  the  others  require 
no  attention.  If  tlie  contract  of  the  parties,  by  which  it  was  agreed 
that  before  the  i)laintiff  could  recover  damages  for  any  injury  to  his 
horses,  is  to  be  upheld,  he  must  give  notice  in  writing  of  his  claim 
therefor,  to  some  officer  of  the  railway  company,  or  to  its  nearest 
station  agent,  before  the  horses  were  removed  from  the  place  of 
destination  or  from  the  place  of  the  delivery  of  the  same  to  the 
plaintiff,  and  before  they  were  mingled  with  other  stock,  then  the 
demurrer  to  the  evidence  was  rightly  sustained,  and  the  judgment 
should  be  affirmed.  The  plaintiff  contends  that  the  agreement  is 
not  binding  upon  him,  because  it  is  not  one  permitted  by  the  laws 
to  be  made,  ami  for  further  reason  that  it  is  without  consideration. 
As  a  general  rule,  common  carriers  are  held  liable  as  insurers,  and 
are  absolutely  responsible  for  any  loss  to  the  property  intrusted  to 
them,  unless  such  loss  is  occasioned  by  the  act  of  God,  or  the  public 
enemy.  It  is  now  a  well-established  rule  of  law  that  this  liability 
maybe  limited  to  a  certain  extent;  but  to  accomplish  this  it  must 
clearly  appear  that  the  shipper  understood  and  assented  to  the  limi- 
tation. Common  carriers  are  not  permitted,  by  agreement  or  other- 
wise, to  exempt  themselves  from  liability  for  loss  occasioned  by 
their  negligence  or  misconduct.  Sucli  limitations  are  held  to  be 
against  the  policy  of  the  law,  and  would  be  void,  liut  it  is  no 
longer  questioned  that  they  may,  by  special  agreement,  stipulate  for 
exemption  from  the  extreme  liability  imposed  by  the  common  law, 
jirovided  that  such  stipulations  are  just  and  reasonable  and  do  not 
contravene  any  law  or  a  sound  public  policy.  That  the  agreement 
in  question  w;is  executed  by  tiie  jdaintiff,  is  admitted,  not  only  by 
the  pleadings,  but  it  was  expressly  agreed  to  by  him  upon  tlu'  trial. 
There  is  no  ])retence  that  any  deceit  or  fraud  was  practised  upon 
liim  by  the  railway  company  in  obtaining  his  assent  to  the  agree- 
ment. So  far  as  api)ears  in  tlu*  testimony,  it  was  fairly  and  under- 
standingly  entered  into  and  executi-d.  His  autliorizcd  agent,  who 
accompanied  the  horses,  and  who  liad  them  in  charge  while  passing 
over  defendant's  road,  knew  of  this  ])rovision  of  the  contract,  and 
was  acquainted  with  their  condition  before  they  were  taken  from 
the  ])o.ssession  of  the  railway  company.  And  the  ])l;iiiitiff,  with 
full  knowledge  of  this  requirement,  paid  the  freight  ch;irges  agreed 
upon,  after  the  injury  had  been  done,  without  complaint,  and  with- 
out claiming  any  damages  therefor;  and  gave  no  notice,  nor  did  he 
make  any  claim  for  damages  prior  to  tlie  commencement  of  this 
action. 


LIMITATION   OF  LIABILITY.  219 

The  stipulation  requiring  notice  of  any  claim  for  damages  to  be 
given  cannot  be  regarded  as  an  attempt  to  exonerate  the  company 
from  negligence  or  from  the  negligence  or  misfeasance  of  any  of  its 
servants.    The  company  concedes  that  such  an  agreement  would  be  in- 
effectual for  that  purpose.     It  is  to  be  regarded  rather  as  a  regulation 
for  the  protection  of  the  company  from  fraud  and  imposition  in  the 
adjustment  and  payment  of  claims  for  damages  by  giving  the  com- 
pany a  reasonable  opportunity  to  ascertain  the  nature  of  the  damage 
and  its  cause.     After  the  property  has  been  taken  from  its  posses- 
sion and  mingled  with  other  property  of  a  like  kind,  the  difficulty  of 
inquiring  into  the  circumstances  and  character  of  the  injury  would 
be  very  greatly  increased.     That  such  a  provision  does  not  contra- 
vene  public   policy,    and   that  it  is  just  and  reasonable,  has  been 
expressly  adjudicated  by  this  court.     In  Goggin  v.  K.  P.  Rly,  Co., 
12  Kas.  416,  a  limitation  substantially  like  the  one  in  question  was 
under  consideration,  and  the  circumstances  of  that  case  were  much 
like  those  of  the  present  one.     It  was  there,  as  here,  urged  in  sup- 
port of  the  reasonableness  and  justice  of  the  regulation,  that  the 
defendant  was,  at  the  time  of  the  alleged  injury,  engaged  in  trans- 
porting great  numbers  of  cattle  and  horses  over  its  line  of  road,  and 
which  were  being  shipped  to  different  points  thereon,  and  that  it 
would  have  been  impossible  for  it  to  have  distinguished  one  car-load 
from  another,  unless  its  attention  was  called  immediately  thereto, 
and  that  the  object  of  the  notice  and  demand  mentioned  in  the  con- 
tract was  to  relieve  it  from  any  false  or  fictitious  claim,  and  to 
give  it  an  opportunity  to  have  an  inspection  of  the  stock  before  they 
were  removed  or  mingled  with  others,  and  the  company  could  thus 
have   an   opportunity  to   ascertain   and  allow  the  actual  damages 
suffered.     These  reasons  are  said  to  be  cogent;  and  the  agreement 
is  there  held  to  be  reasonable,  just,  and  valid.     The   decision   in 
that  case  governs  the  one  at  bar,  and  the  view  which  we  have  taken 
of  the  validity  of  this  limitation  accords  with  the  decisions  of  other 
courts,  among  which  the  following  may  be  cited:  Rice  v.  K.  P.  lUv. 
Co.,  63  Mo.  314;  Oxley  v.  St.  Louis,  Kans  s  City  &  Xorthern  Rly., 
Qo  id.  629;  Express  Co.  v.  Caldwell,  21  Wall.  264  [210];  Dawson  v. 
St.  Louis,  Kansas  City  &  Northern  Rly.,  76  Mo.  514;  Texas  Central 
Rly.  Co.  V.  Morris,  16  Am.  &  Eng.  Rid.  Cases,  259,  and  cases  there 
cited. 

The  plaintiff  makes  the  further  objection  to  the  special  agreement, 
that  it  was  without  consideration.  It  appears  that  the  rate  to  be 
paid  for  the  car  in  which  the  horses  were  shipped  was  omitted  from 
the  contract,  and  the  plaintiff  urges  that  as  the  price  is  not  stated, 
it  does  not  appear  that  any  concession  or  reduction  was  made  from 
the  established  rates,  and  therefore  there  was  no  consideration  for 
the  stipulation  in  question.  Put  that  position  cannot  be  main- 
tained. The  contract  was  in  writing,  and  signed  by  the  parties  to 
be  bound  thereby,  and  by  virtue  of  our  statute  it  imports  a  consid- 


220  C-UIRIERS   OF   GOODS. 

eration.  Gen.  Stat.  ch.  21,  §  7.  If  more  was  needed  to  show  that 
the  objection  is  not  well  founded,  it  might  be  found  in  the  plain- 
tiff's petition,  where  he  alleges  that  the  contract  was  based  upon  a 
valuable  consideration;  and  in  his  testimony,  where  it  appears  that 
$!oO  was  the  rate  agreed  upon  and  the  amount  that  was  paid  by  him 
under  the  contract.  "When  these  things  are  taken  in  connection 
with  the  statement  in  the  written  contract,  that  the  price  agreed 
upon  was  a  reduction  from  the  established  rates,  the  consideration 
for  the  stipulation  in  question  is  sufficiently  shown. 

It   follows    from   what  has  been  said,  that  the  judgment  of  the 
District  Court  should  be  aflSrmed. 


e.    Consiijnee  bound. 

GRACE   V.    AD.\MS. 
100  Mass.  505.     186S. 

CoxTRACT,  against  the  defendants,  who  carried  on  business  under 
the  name  of  the  Adams  Express  Company,  to  recover  the  value  of  a 
])ackage  of  money.  In  the  Superior  Court,  judgment  was-  ordered 
for  the  plaintiff  on  agreed  facts,  and  the  defendants  appealed.  The 
agreed  facts  were  as  follows :  — 

"It  is  agreed  that  the  plaintiff  delivered  to  the  Adams  Express 
Company,  as  common  carriers,  at  Wilmington,  in  the  State  of  North 
Carolina,  Marcli  21,  l.SGi"»,  a  ])ackage  containing  oni'  liundred  and 
fifty  dolhirs,  directed  to  Patrick  Corbett,  Taunton,  I\[assaoliusetts, 
and  the  said  Express  Company  at  the  same  time  delivered  to  the 
jihiintiff  a  bill  of  lading,  a  copy  whereof  is  hereto  annexed,  and 
whicli  makes  part  of  tliis  statement;  that  tlie  said  Exjiress  Comjjany 
shipped  said  jjackage  with  other  packages  from  Wilmington  l)y  the 
steamship  'General  Lyon,'  wl»ich  ship  was  accidentally  burnt  at 
sea,  and  said  package  thereby  destroyed.  It  is  further  agreed,  if 
evidence  of  the  fact  l)e  admissible,  that  the  jdaintiff  would  tes- 
tify that  when  tlie  ])laintiff'  delivered  the  package  and  took  tlie 
bill  of  lading,  a  copy  of  which  is  annexi-d,  he  did  not  read  the 
same." 

The  material  parts  of  the  bill  of  lading,  of  which  the  copy  was 
annexed,  were  as  follows:  — 

"  Adams  Exjjress  Company.  Great  East eiii.  A\'csteni  ^:  Soiithcni 
Express    Forwarders.     §150.      Forn>    5.      Wilmington,    March    21, 

l.Sf;/>.     licceivcd  from One  1'.,  Sealed  and  said  to  contain  one 

hundred  and  lifty  dolls.  Addressed,  Patrick  Corbott,  'I'auntou, 
Mass. 


LIMITATION   OF   LIABILITY.  221 

"  Upon  the  special  acceptance  and  agreement  that  this  company 
is  to  forward  the  same  to  its  agent  nearest  or  most  convenient  to 
destination  only,  and  there  to  deliver  the  same  to  other  parties  to 
complete  the  transportation,  — such  delivery  to  terminate  all  liabil- 
ity of  this  company  for  such  package ;  and  also,  that  this  company 
is  not  to  be  liable  in  any  manner  or  to  any  extent  for  any  loss, 
damage,  or  detention  of  such  package,  or  of  its  contents,  or  of  any 
portion  thereof,  .  .  .  occasioned  by  the  dangers  of  railroad  trans- 
portation, or  ocean  or  river  navigation,  or  by  fire  or  steam.  For 
the  Company.     Robinson." 

Colt,  J.  It  is  to  be  received  as  now  settled  by  the  current  and 
weight  of  authorit}^,  that  a  common  carrier  may,  by  special  contract, 
avoid  or  limit  his  liability  at  common  law  as  an  insurer  of  property 
intrusted  to  him  against  loss  or  damage  by  fire,  occurring  without 
fault  on  his  part.  It  is  not  necessary  to  discuss  here,  how  far  in 
this  or  other  respects  he  may  escape  those  liabilities  which  the 
policy  of  the  law  imposes  by  mere  notices  brought  home  to  the 
employer,  or  whether  the  effect  of  such  notices  may  not  be  held  to 
vary  according  as  it  is  attempted  to  avoid  those  extraordinary  respon- 
sibilities which  are  peculiar  to  common  carriers,  or  those  other 
liabilities  under  which  they  are  held  in  common  with  all  other 
bailees  for  hire.  Judson  v.  Western  Railroad  Co.,  6  Allen,  486 
[185];  York  Co.  v.  Central  Railroad  Co.,  3  Wallace,  107;  Hooper  v. 
Wells,  27  Calif.  11;  and  see  article  by  Redfield,  with  collection  of 
authorities,  5  Am.  Law  Reg.  n.  s.  1. 

It  is  claimed  here  that  the  shipping  receipt  or  bill  of  lading  con- 
stituted a  valid  and  binding  contract  between  the  parties,  and  that, 
upon  the  loss  at  sea  of  the  plaintiff's  package  in  the  course  of  its 
transportation  under  the  contract,  by  an  accidental  fire,  the  defend- 
ants were  discharged  from  any  obligation  to  the  plaintiff  in  regard 
to  it;  and  the  court  are  of  opinion  that  this  claim  must  be  sustained. 

The  receipt  was  delivered  to  the  plaintiff  as  the  contract  of  the 
defendants;  it  is  in  proper  form;  and  the  terms  and  conditions  are 
expressed  in  the  body  of  it  in  a  way  not  calculated  to  escape  atten- 
tion. The  acceptance  of  it  by  the  plaintiff,  at  tne  time  of  the 
delivery  of  his  package,  without  notice  of  his  dissent  from  its  terms, 
authorized  the  defendants  to  infer  assent  by  the  plaintiff.  It  was 
his  only  voucher  and  evidence  against  the  defendants.  It  is  not 
claimed  that  he  did  not  know,  when  .he  took  it,  that  it  was  a  ship- 
ping contract  or  bill  of  lading.  It  was  his  duty  to  read  it.  The 
law  presumes,  in  the  absence  of  fraud  or  imposition,  that  he  did 
read  it,  or  was  otherwise  informed  of  its  contents,  and  was  willing 
to  assent  to  its  terms  without  reading  it.  Any  other  rule  would 
fail  to  conform  to  the  experience  of  all  men.  Written  contracts  are 
intended  to  preserve  the  exact  terms  of  the  obligations  assumed,  so 
that  they  may  not  be  subject  to  the  chances  of  a  want  of  recollection 
or  an  intentional  misstatement.     The  defendants  have  a  rig:ht  to  tliis 


222  CARRIERS    OF   GOODS. 

protection  and  are  not  to  be  deprived  of  it  b}-  the  wilful  or  negligent 
omission  of  the  plaintiff  to  read  the  paper.  The  case  of  Kice  v. 
Dwight  Manufacturing  Co.,  2  Cush.  80,  87,  is  an  authority  in  point. 
In  an  action  to  recover  for  work  done,  the  defence  was  that  the 
work  was  performed  under  a  special  contract,  and  a  paper  of  printed 
regulations  was  shown  to  have  been  given  to  and  accepted  by  the 
jtlaintiff  as  containing  the  terms  of  the  contract,  but  which  was  not 
signed  by  either  party.  The  plaintiff  denied  knowledge  of  its  con- 
tents; but  it  was  said  by  Forbes,  J.,  that  where  a  party  enters  into 
a  written  contract,  in  the  absence  of  fraud,  he  is  conclusively  pre- 
sumed to  understand  the  terms  and  legal  effect  of  it,  and  to  consent 
to  them.  See  also  Lewis  r.  Great  Western  Ixailway  Co.,  5  H.  &  X. 
867;  Squire  v.  New  York  Central  Railroad  Co.,  98  Mass.  239. 

This  case,  then,  is  brought  Avithin  the  rule  which  authorizes  car- 
riers to  relieve  themselves  from  losses  of  this  description  by  express 
contracts  with  tlie  employer.  It  ditlers  from  the  cases  of  Brown  v. 
Eastern  Railroad  Co.,  11  Cush.  97,  and  ]\Ialone  r.  Boston  &  Worcester 
Railroad  Co.,  12  Gray,  388.  The  limitation  relied  on  in  both  those 
cases  was  in  the  form  of  a  notice  printed  on  the  back  of  a  passenger 
ticket,  relating  to  baggage;  and  it  was  held  that  there  was  no  pre- 
sumption of  law  that  the  party,  at  the  time  of  receiving  the  ticket, 
had  knowledge  of  the  contents  of  the  notice.  It  is  obvious  that  in 
those  cases  the  ticket  was  not  designed  to  be  held  as  the  evidence  of 
the  contract  between  the  parties.  The  contract,  which  was  of  pas- 
senger transportati<jn,  was  not  attempted  to  be  set  forth.  At  most, 
it  was  but  a  check,  to  be  used  temporarily  and  then  delivered  to 
the  conductor  as  his  voucher,  with  these  notices  on  the  back.  The 
presumption  that  every  man  knows  the  terms  of  a  written  contract 
which  he  enters  into,  therefore,  did  not  apjdy.  Nor  was  the  accept- 
ance of  the  ticket  conclusive  evidence  of  assent  to  its  terms. 

The  recent  case  of  Buckland  r.  Adams  Ex})ress  Co.,  97  Mass.  124, 
requires  notice,  because,  ujjon  a  case  in  most  respects  similar  to 
this,  a  different  result  was  reached  by  the  court.^    The  legal  prin- 

*  [The  following  panigmph  from  the  opinion  in  the  case  cited  shows  the  view  of 
the  court  on  this  point.  The  other  portion  of  the  case  is  found  on  page  30  of  this 
volume.] 

The  other  question  rai.seil  hy  the  agreed  fact.s  is  rather  one  of  fact  than  of  law.  It 
iH  no  longer  oi)cn  to  controversy  in  this  State  that  a  common  carrier  may  limit  his 
responsibility  for  projKirty  intrusted  to  him  by  a  notice  (;ontaining  rea.snnable  an<l 
huitable  restrictions,  if  brought  home  to  the  owner  of  goods  deliveretl  for  transporta- 
tion ami  luwented  to  clearly  and  unei|uivocally  by  him.  It  is  also  settled  that  assent 
in  not  necessarily  to  be  inferred  from  the  mere  fact  that  knowli-dgo  of  such  notice  on 
the  part  of  an  owner  or  consignor  of  goods  is  shown.  Tlie  evidence  must  go  further 
aiid  be  Hufllcient  to  show  that  the  terms  on  which  the  carrier  proposed  to  carry  the 
grMjdJi  were  adopted  as  the  contract  l>etween  tin;  parti(rs  according  to  which  the  service 
of  the  carrier  was  to  lie  rendered.  Judson  i'.  Western  Railroad  Co.,  6  Allen,  18'}- 
41»0  [185].  On  a  connideration  of  the  facts  stated,  it  does  not  appear  to  us  that  the 
plaintitfit  ever  did  agree  that  the  merchandise  in  ipiestion  should  be  transported  on 
the  terms  mt  forth  in  the  receijit  which  was  delivered  to  the  workman  at  th<'  maiiu- 


LIMITATION    OF   LIABILITY.  223 

ciples  upon  which  that  case  was  decided  are  those  here  stated.  It 
was  a  case  upon  an  agreed  statement  of  facts;  and  the  ditference 
resulted  in  the  application  of  the  law  to  the  facts  then  presented. 
It  is  to  be  noticed  that  the  receipt  containing  the  limitation  relied 
on  was  in  that  case  delivered  to  a  workman  in  the  employ  of  a 
stranger,  who,  so  far  as  it  ajjpears,  had,  in  that  ])articular  instance 
only,  been  requested  by  the  plaintiffs  to  deliver  the  parcel  in  their 
absence,  and  as  a  mere  favor  to  them.  And  it  further  appeared 
that  the  previous  course  of  dealing  between  the  parties  was  such 
that,  in  a  majority  of  instances,  in  which  the  plaintiffs  had  employed 
the  defendants  to  transport  like  packages,  no  receipt  was  made  out, 
and  no  special  contract  insisted  upon.  Under  such  circumstances, 
it  was  held  that  it  could  not  fairly  be  inferred  that  the  plaintiffs 
understood  and  assented  to  the  contents  of  the  receipt  as  fixing  the 
terms  on  which  the  defendants  were  to  transport  the  merchandise, 
or  that  the  workman  had  authority  to  make  an  unusual  contract. 

The  same  remarks  apply  to  the  case  of  Perry  v.  Thompson,  98 
Mass.  249,  which  is  to  be  distinguished  from  the  case  at  bar  by  the 
fact  that,  in  the  previous  dealings  of  the  parties,  property  had  been 
received  and  carried  without  any  notice  relating  to  the  carrier's 
liability  having  been  given,  and  by  the  further  fact  that,  when  the 
notice  in  that  instance  was  received,  the  printed  parts  of  it  were  so 
covered  up  by  the  revenue  stamp  afRxed  to  the  receipt  that  it  could 
not  be  read  intelligibly. 

So  in  Fillebrown  v.  Grand  Trunk  Eailway  Co. ,  55  Maine,  462,  it 
was  held  that,  when  a  verbal  contract  for  transportation  was  made 
without  restriction,  its  legal  effect  would  not  be  changed  by  the  con- 
ditions in  a  receipt  which  was  subsequently  given  to  the  clerk  of 
the  consignor,  who  delivered  the  goods  at  the  station,  but  who  had 
no  express  authority  either  to  deliver  or  to  contract  with  the 
defendants. 

These  cases  do  not  reach  the  case  at  bar,  where  the  delivery  of 
the  receipt  was  directly  to  the  plaintiff;  nor  would  they  be  held 
decisive  in  a  case  where  the  delivery  was  made  and  the  receipt 
accepted  under  ordinary  circumstances  by  a  special  or  general  agent 

factory  when  the  package  was  delivered  to  the  defendant's  agent.  It  is  not  stated  that 
the  plaintiffs  or  either  of  them  ever  read  the  paper  containing  the  alleged  regulations 
or  one  similar  to  it.  It  is  agreed  that  defendants  received  and  carried  like  packages 
of  merchandise  for  the  plaintiffs  at  or  about  the  time  when  tlie  one  in  controversy  was 
delivered  for  carriage  without  giving  the  ]ilaintiffs  any  receipt  whatever  therefor,  and 
this  was  the  course  of  dealing  between  the  parties  in  a  large  majority  of  tiie  instances 
in  which  the  defendants  had  been  employed  by  the  plaiiititls.  From  this  it  would 
appear  that  the  ordinary  course  of  business  was  for  the  defendants  to  receive  merchan- 
dise from  the  plaintiffs  without  attempting  to  limit  their  liability  as  carriers  in  any 
manner  whatever.  Under  such  circumstances  we  cannot  fairly  infer  that  the  jilaintitfs 
understood  that  by  the  delivery  of  a  receijit  for  the  merchandise  the  defendants  in- 
tended to  limit  the  liability  which  they  ordinarily  assumed  in  their  dealings  with  the 
plaintiffs,  or  that  the  latter  understood  and  assented  to  the  contents  of  such  receipt  as 
fixing  th(!  terms  on  wliirh  tlic  defcnd.ints  were  to  transport  the  merchandise. 


224  CARRIERS    OF    GOODS. 

of  the  owner,  not  a  mere  servant  or  porter,  and  who  might  be 
regarded  as  clothed  with  authority  to  bind  the  owner  in  giving 
instructions  and  making  conditions  affecting  the  transportation. 
Squire  v.  New  York  Central  llailroad  Co.,  98  :Mass.  239. 

Judgment  for  the  defendants.^ 


SHELTOX  V.  ]MERCHANTS'   DISPATCH,    etc.    CO. 
59  N.  Y.  25S.     1871. 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  affirming  a  judgment  in  favor  of  plaintiff, 
entered  upon  the  report  of  a  referee. 

This  action  was  against  defendant  as  a  common  carrier,  for  failure 
to  deliver  goods  intrusted  to  it  for  transportation. 

The  referee  found  the  following  facts:  — 

That  on  the  2d  day  of  October,  1871,  the  plaintiff  purchased  at 
the  city  of  New  York,  of  the  firm  of  H.  B.  Claflin  &  Co.,  a  quantity 
of  goods,  and  directed  them  to  ship  the  same  to  him  at  Janesville, 
Wisconsin,  by  the  defendant's  line.  The  goods  so  purchased  were 
packed  by  Claflin  &  Co.,  were  by  them  marked  "H.  S.  Shelton, 
Janesville,  "Wis.,"  and  were,  on  the  same  day,  by  them  delivered 
to  the  defendant,  at  its  depot  in  the  city.  At  the  time  of  such 
delivery,  H.  B.  Claflin  &  Co.  received  from  the  defendant  three 
receipts.     (A  copy  of  one  is  contained  in  opinion.)     On  the  third 

1  ANCHOR  LINE  v.  DATEK. 
68  111.  361».  1873. 

P.KF,FJ<F,,    Ch.  J 

Tli<-  Mil  of  lading  delivered  to  the  consignors  relieves  the  carrier  from  liability 
for  loss  V)y  firr-,  while  the  proiierty  is  in  transit  or  while  in  depots,  etc 

This  Viill  of  lading,  aiijH-llants  insist,  was  the  contract  of  the  parties,  by  which  they 
arc  bound,  and  the  jTovisions  of  which  are  i.lainly  and  easily  understood  by  any 
business  man,  and  the  as.sent  of  the  hhipi)er  to  the  terms  contained  in  it  should  be 
presumed. 

The  court,  sitting  as  a  Jury.  <lid  not  find  evidence  sufficient  to  justify  it  in  j-rc 
numing  absent  from  the  m.Mc  acceptance  of  the  receipt.  The  shipper  had  no  alteniutivc 
but  an  acceptance  of  it,  and  his  assent  to  its  conditions  cannot  be  inferred  from  that 
fact  alone.  It  is  in  j.roof  that  its  terms  and  conilitions  were  not  known  to  these 
HhifiiK-pi,  although  they  had  accepted  a  largo  numl><T  of  them  in  the  course  of  tlieir 
bUHinetut  with  the  apjiellantji. 

The  terms  and  conditions  of  this  bill  of  lading,  or  receipt,  were  insortd  for  the 
puriK.«!  of  limiting  tlie  liability  ai.pellants  were  un<ler  by  the  common  law.  They 
dhoiiM  ny.p.ir  jdiiinly  in  the  instrument,  Im-  un-lerstood  by  the  consignnr,  and 
Ji,,.  .ptecl  ait  the  contract  of  the  parties,  and  inti-nded  to  evidence  the  terms 
of  t.  These  were  jHiints  for  the  court  trying  the  ca»e,  and  the  finding 
of  titv  court  iu  thi«  respect  cannot  be  disturlx-il. 


LIMITATION    OF    LIABILITY.  225 

and  fourth  days  of  October,  Claflin  &  Co.  presented  the  receipts  at 
the  general  office  of  the  defendant,  and  on  the  same  or  following  day 
received  bills  of  lading  in  the  usual  and  customary  form  given  by 
defendant.     They  contained  this  clause :  — 

"To  be  forwarded  in  like  good  order  (dangers  of  navigation, 
collisions,  and  fire,  and  loss  occasioned  by  mob,  riot,  insurrection, 
or  rebellion,  and  all  dangers  incident  to  railroad  transportation, 
excepted)  to  Chicago  depot  only,  he  or  they  paying  freight  and 
charges  for  the  same  as  below." 

It  was  the  usual  custom  of  said  H.  B.  Claflin  &  Co.  to  mail 
.receipts  or  bills  of  lading  to  their  consignees. 

The  packages  aforesaid  were  safely  and  with  all  due  care  and 
diligence  transported  to  Chicago,  and  arrived  there,  a  part  in  the 
evening  of  Saturday,  the  seventh  day  of  October,  and  the  remainder 
thereof  on  the  morning  of  Sunday,  the  eighth  day  of  October,  and 
were,  upon  their  arrival,  unloaded  into  a  freight-house  used  by  the 
defendants.  In  the  evening  of  the  eighth,  a  great  fire  occurred  in 
Chicago,  without  fault  or  negligence  on  the  part  of  the  defendant; 
that  said  packages  and  their  contents  were  consumed  and  entirely 
destroyed,  without  negligence  of  any  kind  on  the  part  of  the 
defendant. 

The  referee  was  requested  to  find  the  following  additional  facts, 
which  appeared  by  the  evidence :  — 

"That  the  said  A.  B.  Claflin  &  Co.  were,  on  the  said  2d  day  of 
October,  1871,  and  for  a  long  time  previous  thereto  had  been,  large 
shippers  of  goods  by  the  defendant's  line,  and  that  it  had  always 
been  their  custom  to  obtain  receipts  or  bills  of  lading  therefor." 

"  That  the  defendants  were,  at  the  time  mentioned  in  the  com- 
plaint, carriers  of  goods,  wares,  and  merchandise  for  him  between 
different  parts  of  the  United  States,  but  that,  in  October,  1871,  the 
terminus  of  the  route  of  defendant  from  the  city  of  New  York  in 
the  direction  of  Janesville,  Wisconsin,  was,  and  had  been  since  the 
10th  day  of  March,  1871,  Chicago,  Illinois,  and  that  transportation 
beyond  Chicago,  in  the  direction  of  and  to  Janesville  aforesaid,  had 
to  be  performed  by  separate  and  independent  carriers,  and  the 
charges  of  transportation  beyond  Chicago  were  paid  to  such  carriers 
by  the  owners  of  the  property  transported  in  addition  to  the  amount 
paid  to  defendant  for  transportation  to  Chicago  aforesaid." 

The  referee  refused  so  to  find,  as  immaterial,  and  defendant's 
counsel  excepted. 

Johnson,  J.  The  referee  refused  to  find  that,  previous  to  the 
shipment  in  question,  H.  B.  Claflin  &  Co.  had  been  large  shippers 
by  the  defendant's  line,  and  had  been  always  accustomed  to  obtain 
bills  of  lading  for  the  goods  shipped;  and  also  that  the  defendants 
were  carriers  upon  a  route  terminating  at  Chicago,  and  not  extend- 
ing to  Janesville,  Wisconsin;  and  that  between  the  latter  points 
transportation   had  to  be  performed  by  separate   and   independent 

15 


226  CARRIERS   OF   GOODS. 

carriers.  These  matters  the  referee  refused  to  find,  on  the  ground 
that  they  were  immaterial  to  tlie  rights  of  the  parties.  In  this  we 
think  he  erred,  and  for  the  following  reasons:  Clatlin  &  Co.  were 
the  agents  of  the  plaintiff  in  respect  to  the  transportation  of  the 
goods  in  question.  His  directions  to  them  were  to  sliip  the  goods  to 
him  at  Janesville,  Wisconsin,  by  the  defendant's  line.  The  extent 
of  the  authority  thus  conferred,  was  considered  in  Nelson  v.  Hudson 
Ttiver  Railroad  Company,  48  N.  Y.  498.  It  necessarily  extends  to 
the  making  of  such  contracts  as  the  agents,  in  the  honest  exercise 
of  their  discretion,  see  fit  to  make.  The  fact  that  the  carriers  and 
the  agents  employed  have  a  habitual  course  of  dealing  in  respect  to 
contracts  for  transportation,  is  a  material  and  important  element  in 
determining  the  construction  to  be  put  on  tlieir  acts  in  any  particu- 
lar case.  Mills  v.  :Mich.  Cent.  Kailroad,  45  X.  Y.  622.  The 
delivery  by  the  agents  of  the  plaintiff,  to  the  carriers,  was  made 
upon  no  particular  agreement  made  at  the  time.  The  packages  were 
marked  with  the  address  of  the  plaintiff,  and  receipts  were  signed 
by  the  agents  of  the  defendants,  at  their  receiving  depot  at  New 
York.  These  receipts  were  in  a  bound  receipt-book  belonging  to 
Claflin  &  Co.,  filled  up  by  them,  and  signed  by  the  agents  of  the 
defendants.  They  purport  to  be  receipts,  and  not  contracts  for 
carriage.  They  were  in  the  following  form:  "New  York,  Oct.  2, 
1871.     Received  from  H.  B.  Claflin  &  Co.,  in  good  order  on  board 

the  M.  D.  for the  following  packages,  one  case  D.  G.  marked 

H.  S.  Shelton,  Janesville,  Wis.,"  and  were  signed  "Gleason."  In 
a  day  or  two,  but  after  the  packages  had  been  started  on  their  way, 
the  agents  of  the  plaintiff,  acting  in  accordance  with  the  habitual 
mode  of  doing  this  business,  sent  the  receipts  to  the  defendant's 
office,  and  procured  bills  of  lading  for  the  goods,  the  giving  of 
which  was  entf-red  on  the  several  receipts.  These  bills  of  lading 
expressed  the  actual  contract  of  carriage  between  the  parties  who 
in  fact  made  the  contract,  the  defendants  on  the  one  hand,  and 
H.  B.  Claflin  on  the  other.  When  the  goods  were  delivered  and  the 
j)rimary  receipts  given,  each  of  the  jjarties  was  acting  in  a  hal)itual 
method,  and  with  a  habitual  understanding  of  wliat  they  were 
engaged  in  doing.  The  receijjts  were  jjresented  and  signed  with 
the  view  and  expectation  on  both  sides  that  bills  of  lading  were  in 
the  usual  course  to  be  subsequently  issued,  expressing  the  intentions 
and  engagements  of  the  parties.  This  was  their  method  of  dealing, 
distinctly  in  their  contt-mplation  from  the  In-ginning,  reasonable  in 
itself  and  completely  within  tlie  a\itliority  committed  by  the  ]tlain- 
tiffH  to  his  agents,  H.  B.  Claflin  &  Co.  Any  attempt  on  their  part 
t<)  claim  a  different  agreement  would  have  been  an  act  of  bad  faith; 
becau.se  it  would  have  been  a  departure  from  the  understanding 
bawed  upon  the  i)revious  course  of  dealing  of  these  parties.  In  the 
view  we  take  of  the  relations  and  acts  of  tliese  parties,  tlie  matters 
of  fact  which  the  referee  lield  to  bo  immaterial  were  i.l.iinly  m:ite- 


LIMITATION   OF   LIABILITY.  227 

rial,  because  they  were  essential  to  the  disclosure  of  the  actual 
contract  of  the  parties.  The  bills  of  lading  were  obtained  by  the 
plaintiff's  agents,  in  the  exercise  of  their  original  authority  to 
contract  with  the  defendants  for  transportation,  and  these  con- 
trolled the  rights  of  the  parties  and  displaced  the  common-law 
relation,  which  otherwise  might  have  existed  between  them. 

The  order  of  time  in  which  the  business  was  actually  transacted 
cannot  be  allowed  to  affect  the  rights  of  the  parties.  If  H.  B. 
Claflin  &  Co.  were  originally  authorized  to  ship  on  bills  of  lading 
limiting  the  common-law  liability  of  the  defendants,  the  fact  that 
receipts  were  taken  in  one  stage  of  the  business,  intended  by  neither 
party  as  completing  their  dealing  or  contract,  did  not  exhaust  the 
authority.  It  was  never  so  intended  and  cannot  have  that  effect. 
The  acts  of  the  parties  must  have  operation  as  they  were  intended 
by  the  parties  when  they  were  done.  The  bills  of  lading  excepted 
the  risk  of  fire,  and  as  it  was  by  that  danger  that  the  property  in 
question  was  destroyed,  the  defendants  are  free  from  liability,  at 
least  unless  the  loss  was  due  to  their  negligence  or  fault.  The  only 
suggestion  of  fault  is  that  the  cars  containing  these  packages  were 
unloaded  on  Sunday  in  Chicago.  The  case  does  not  inform  us  that 
by  the  law  of  Illinois,  where  the  loss  happened,  unloading  cars  on 
Sunday  was  unlawful,  and  we  have  no  means  of  knowing  such  to  be 
the  fact,  in  respect  to  the  laws  of  that  State.  The  common  law,  at 
least,  teaches  no  such  doctrine. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  costs  to 
abide  the  event. 


f.  Available  to  Connecting  Carrier. 

BABCOCK  V.    LAKE   SHORE,    etc.    R.    CO. 
49  N.  Y.  491.     1872. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  fourth  judicial  department,  affirming  a  judgment  for 
the  defendant  entered  on  decision  of  the  court  upon  trial  without  a 
jury.     Rep.  below,  43  How.  Pr.  E.  317. 

The  action  was  brought  to  recover  the  value  of  a  quantity  of 
petroleum  oil  destroyed  by  fire  while  in  possession  of  defendant  as 
common  carrier. 

On  November  14,  1SG7,  the  plaintiff  shipped  fifty-six  barrels  of 
refined  petroleum,  at  Oil  City,  in  tlie  State  of  Pennsylvania,  by  the 
Atlantic  and  Great  Western  Railway  Company,  under  an  agreement, 
of  which  the  following  is  a  copy:  — 


228  CARRIERS    OF    GOODS. 

'•Atlantic  and  Great  Western  Railway,  7.35. 

"Oil  City  Station,  November  14,  1867. 

"  Received  from  Babcock  for  shipment  by  The  Atlantic  and  Great 

Western  Railway  Company,  the  following  property  in  good  order, 

except  as  noted,  marked,  and  consigned  as  follows:  — 

Mark.  Article. 

J.  W.  0.  &  Co.  ) 

J.  W.  Osburn  &  Co.  \-  56  Bbls.  R.  Oil,  Car  1,848. 

Albany,  N.  Y.  ) 

I  5  Cent  Internal  Revenue  ) 
j  Stamp,  cancelled.        ) 

"Rate  in  cents  per  100  lbs.     $!25.00  per  car. 

"Which  this  company  and  connecting  roads  agree  to  deliver  with 
as  reasonable  despatch  as  their  general  business  will  ])ernnt,  delays 
and  accidents  excepted,  but  tliey  do  not  agree  to  transport  the  same 
by  any  particular  train,  nor  in  any  specified  time." 

''Subject  to  the  conditions  below: 

"  At  Corry  station  upon  payment  of  freight  and  charges  thereon. 

"In  consideration  of  the  reduced  rate  given  and  specified  above 
for  the  transportation  of  petroleum,  it  is  understood  tliat  the  owner 
or  shipper  assumes  all  risk  of  damage  from  lire  or  leakage  or  from 
any  cause  whatever  while  in  transit,  or  at  the  depots  or  stations  of 
any  of  the  companies  whose  lines  of  road  it  may  be  transported  upon 
or  over. 

"The  rates  on  petroleum,  when  taken  at  the  companies'  risk,  or 
damage  from  fire  or  otlier  causes,  being  doulde  tlie  amount  herein 
specified.  'The  owner  or  shipper  of  this  i)roperty,  in  consideration 
of  having  the  same  transported  at  such  reduced  rates,  does  hereby 
release  this  and  all  other  companies  over  whose  lines  of  roads  it  may 
pass,  from  all  claim  for  loss  or  damage  by  fire,  leakage,  or  any  other 
cause  whatever,  such  products  of  ))etroU'um  as  naphtlia,  benzine, 
benzole,  etc.,  etc.,  being  exceedingly  hazardous,  will  not  be  trans- 
ported except  by  special  agreement  as  to  time  of  receiving  and  rates 
to  be  charged;  and  any  i>arty  shipping  such  articles,  witliout  notify- 
ing tlie  company  and  getting  their  consent,  sliall  not  only  forfeit 
all  claim  against  the  company  for  damages  sustaim-d,  but  sliall  be 
accountable  to  the  comjjany  for  loss  it  may  sustain  in  consequence 
thereof. 

"'The  acceptance  of  this  receipt  by  the  owner  or  sliipjior  will  be 
considered  as  evidence  of  his  assent  to  all  the  conditions  containetl 
therein.' 

>•!>.  \V.  CruNSKv,  Jr.,  A'jeut.^' 

The  price  stated  in  the  contract  was  the  custoni:iry  jtricc  f<»r  tin' 
transiKjrtation  of  freiglit  from  Oil  City  to  Corry. 

That  company  carried  the  petroleum  to  Corry.  :md  tliore  dtlivcrcd 
it  to  Tlje  I'lufFalo  and  Pittsburg  Railroad  Company,  whirli  fonijtaiiy 


LIMITATION   OF   LIABILITY.  229 

carried  it  to  Brocton,  in  this  State,  and  delivered  it  to  the  Buffalo 
and  Erie  Railroad  Company,  of  which  company  defendant  is  suc- 
cessor and  liable  for  its  debts  and  obligations.  While  in  possession 
of  the  Buffalo  and  Erie  Railroad  Company,  the  oil  was  destroyed  by 
fire. 

Allen,  J.  To  exempt  the  defendant,  the  successor  in  liability 
to  the  Buffalo  and  Erie  Railroad  Company,  from  the  common-law 
responsibility  of  common  carriers,  extending  to  all  losses  except 
those  resulting  from  the  act  of  God  or  the  public  enemies,  it  must 
appear  that  the  oil  of  the  plaintiff  was,  at  the  time  of  its  destruc- 
tion, in  the  possession  of  the  Buffalo  and  Erie  Railroad  Company, 
for  transportation  under  a  special  contract,  restricting  the  liability 
of  the  carrier,  made  by  and  with  the  plaintiff,  or  some  one  author- 
ized to  act  in  his  behalf.  The  contract  with  the  Atlantic  and  Great 
Western  Railway  Company  was  special  in  its  terms,  and  by  it  the 
liabilities  of  the  carrier  were  greatly  restricted,  and  a  loss  by  fire 
was  excepted  from  the  risk  of  the  carrier,  and  if  that  was  a  through 
contract,  —  that  is,  a  contract  for  the  carriage  of  the  property  to  and 
a  delivery  of  it  at  Albany,  its  ultimate  destination, —  each  carrier  in 
the  course  of  its  transit,  including  the  Buffalo  and  Erie  Railroad 
Company,  was  entitled  to  the  benefit  of  the  exemptions  from  liabil- 
ity secured  by  it.  It  would  be  regarded  as  made  for  the  benefit  of 
all  who  undertake  the  carriage  of  the  goods  upon  the  terms  and 
conditions  prescribed  by  it. 

If  it  was  not  a  through  contract,  then  the  Buffalo  and  Erie 
Railroad  Company  received  the  goods  as  common  carriers,  and  are 
liable  as  such  for  all  losses  not  within  the  recognized  exceptions; 
that  is,  except  those  which  were  inevitable  or  occasioned  by  public 
enemies. 

If  the  first  carrier,  the  Atlantic  and  Great  Western  Railway 
Company,  only  undertook  for  the  carriage  of  the  oil  to  Corry  for  an 
agreed  compensation,  and  the  delivery  at  that  place  to  another 
carrier,  there  was  no  authority  resulting  from  the  relation,  or  the 
contract  between  that  company  and  the  plaintiff,  to  enter  into  a 
special  contract,  in  behalf  of  the  plaintiff,  with  the  next  carrier  at 
Corry,  to  limit  and  restrict  the  liability  of  such  carrier  in  any 
respect.  There  was  no  agency  created;  the  whole  duty  of  the 
Atlantic  and  Great  Western  Railway  Company  was  that  of  carrier, 
and  terminated  with  the  delivery  of  the  goods  to  the  next  carrier, 
and  the  common-law  liability  of  the  carrier  receiving  the  goods 
attached  at  once  and  by  necessary  implication  upon  their  receipt. 

The  goods  were  received  by  the  Atlantic  and  Great  Western  Rail- 
way Company  at  Oil  City,  in  Pennsylvania,  addressed  to  J.  W.  0.  & 
Co.,  Albany,  New  York,  and,  had  they  been  received  without  special 
contract,  a  contract  would  not  have  been  implied  on  the  part  of  the 
railway  company  to  carry  the  goods  or  provide  for  their  carriage 
beyond  the  terminus  of  its  road.     Its  whole  duty  would  have  been 


230  CARKIERS    OF   GOODS. 

performed  by  transporting  them  to  the  extent  of  its  own  route  and 
delivering  them  to  the  next  connecting  carrier;  that  is,  the  railway 
company  would  have  been  liable  as  a  carrier  over  its  own  road  and 
as  a  forwarder  from  the  terminus  of  its  line.  This  is  the  recognized 
rule  in  this  and  other  States,  although  it  is  otherwise  in  England. 
Koot  V.  Great  Western  Railway  Co.,  45  N.  Y,  524,  and  cases  cited 
by  Kapallo,  J.,  Kedfield  on  Carriers,  §  181,  and  cases  cited  in  note 
9.  But  the  goods  were  received  by  the  Atlantic  and  Great  Western 
Railway  Company  under  special  contract,  and  upon  the  interpreta- 
tion of  that  contract  and  the  effect  to  be  given  to  it  the  decision  of 
this  case  hinges.  In  the  agreement  the  goods  were  described  as 
**56bbls.  R.  Oil,  Car  1,848,"  and  in  the  margin  "mark,  J.  W.  O. 
&  Co.,  J.  W.  Osborne  &  Co.,  Albany,  N.  Y."  The  mark  or  direc- 
tion of  the  property  was  given  to  identify  and  distinguish  it  from 
other  property  of  the  same  character,  and  was  not  inserted  as  a 
part  of  the  agreement,  and  from  it  a  contract  to  carry  to  Albany 
■would  not  be  implied.  The  agreement  was  by  "  this  (The  A.  &  G. 
W.  R.)  company  and  connecting  roads,"  to  deliver  the  property  at 
Corry  station,  which  was  the  terminus  of  the  road  of  that  company, 
upon  payment  of  freiglit  and  charges  thereon.  The  freight  was 
specified  at  twenty-five  dollars  per  car.  This  was  the  freight  to 
Corry,  and  no  rate  was  agreed  upon  or  specified  for  transportation 
beyond  that  place.  By  the  agreement  the  plaintiff,  "  in  considera- 
tion of  the  reduced  rates  given  and  specified  above  for  the  transjior- 
tation  of  petroleum,"  assumed  certain  risks,  including  that  by  which 
the  property  was  destroyed,  "while  in  transit,  or  the  depots  or 
station  of  any  of  the  companies  whose  lines  of  road  it  may  be  trans- 
ported upon  or  over." 

The  ])laintiff  did,  "in  consideration  of  having  the  petroleum 
transported  at  such  reduced  rates,"  release  the  A.  &  G.  W.  K.  Co. 
and  all  other  companies  over  whose  lines  of  roads  it  may  pass,  from 
"all  claim  from  loss  or  damage  by  fire,"  etc.  The  agreement  was 
made  Ijy  tilling  up  a  printed  form  adapted  to  a  contract  for  the 
transportation  of  goods  beyond  the  route  of  thr  contracting  carrier, 
and  over  the  lines  of  otlier  and  connecting  roads  to  distant  places. 
The  parties  merely  inserted  in  writing  the  date  and  place  of  ship- 
ment, the  name  of  the  owner,  the  description  of  the  property,  the 
freight  and  the  place  of  delivery  (Corry  station).  The  commence- 
ment and  termination  of  the  res])onsibility  of  tlie  carrier  (Tlic  A.  & 
G.  W.  R.  Co.)  were  expressed  clearly  and  distinctly  in  the  written 
jiarts  of  the  contract. 

The  goods  were  not  lost  or  destroyed  between  the  place  of  their 
receipt  and  Corry,  nor  until  after  they  hud  left  Corry  in  charge  of 
other  carriers  and  had  come  into  the  possession  of  the  liuffah*  :ind 
T'rio  Railway  Company,  in  the  course  of  their  transit  to  All»;iny. 
The  contract  was  for  the  carriage  of  the  oil  to  Corry,  and  only  so 
much  f»f  the  printed  matter  of  tlie  blank  form  used  as  is  consistent 


LIMITATION   OF  LIABILITY.  231 

with  and  appropriate  to  that  contract  is  of  any  effect.  The  intent 
of  the  contracting  parties  is  to  be  gathered  from  the  entire  instru- 
ment, the  written  part  controlling  where  that  and  the  printed  are  in 
conflict,  and  the  latter  to  be  rejected  when  incompatible  with  or 
inappropriate  to  the  intent  of  the  parties,  as  clearly  indicated  by 
the  written  portion.  The  printed  form  is  very  general,  and  contains 
provisions  adapted  to  contracts  differing  essentially  from  this,  some 
of  which  are  not  adapted  to  a  contract  for  the  carriage  of  goods 
wholly  within  the  limits  of  the  contracting  carriers'  line  of  road, 
and  such  parts  as  are  inapplicable  must  be  rejected  as  surplusage, 
and  the  written  portion  of  the  agreement  prevail.  Leeds  v. 
Mechanics'  Ins.  Co.,  4  Seld.  351;  Harper  v.  Albany  Mutual  Ins. 
Co.,  17  N.  Y.  194.  The  limitation  of  the  carrier's  liability  by 
the  contract  is  necessarily  confined  to  the  service  contracted  for, 
and  the  carriers  who  were  parties  to  it. 

Carriers  who  are  not  named  in  a  contract  for  the  carriage  of 
goods,  and  who  are  not  formal  parties  to  it,  may,  under  certain  cir- 
cumstances, have  the  benefit  of  it.  Such  is  the  case  when  a  contract 
is  made  by  one  of  several  carriers  upon  connecting  lines  or  routes 
for  the  carriage  of  property  over  the  several  routes  for  an  agreed 
price  by  authority,  express  or  implied,  of  all  the  carriers.  So,  too, 
in  the  absence  of  any  authority  in  advance,  or  any  usage  from  which 
an  authority  might  be  inferred,  a  contract  by  one  carrier  for  the 
transportation  of  goods  over  his  own  and  connecting  lines,  adopted 
and  acted  upon  by  the  other  carriers,  would  enure  to  the  benefit  of 
all  thus  ratifying  it,  and  performing  service  under  it.  But  in  such 
and  the  like  cases  the  contract  has  respect  to  and  provides  for  the 
services  of  the  carriers  upon  the  connecting  routes.  Magliee  v.  The 
Camden  &  Amboy  R.  Trans.  Co.,  45  N.  Y.  514,  and  Lamb  v.  Same, 
46  X.  Y.  272,  are  in  point,  and  illustrate  the  rule. 

There  was  no  agreement  here  for  the  carriage  of  the  oil  beyond 
Corry,  no  rate  of  freight  agreed  upon  to  any  other  point,  and  the 
carrier  was  entitled  to  receive  the  freight  earned,  twenty-five  dollars 
per  car,  on  delivery  of  the  oil  at  that  place.  There  was  no  consid- 
eration for  an  agreement  by  the  plaintiff  to  relieve  the  carriers 
who  should  thereafter  receive  the  property  for  transportation  from 
the  common-law  liabilities,  and  no  such  an  agreement  was  made. 
It  is  claimed  that  the  finding' of  the  judge  by  whom  the  cause  was 
tried,  that  the  Buffalo  and  Erie  Railroad  Company  received  the 
property,  "  under  and  in  pursuance  of  said  agreement,  upon  its  said 
railroad  from  Brocton  to  Buffalo,"  is  conclusive  as  a  finding  of  fact, 
and  entitles  the  defendant  absolutely  to  the  benefit  of  the  stipulations 
of  that  contract.  The  answer  is  tliat  the  transportation  from  Brocton 
to  Buffalo  is  not  within  the  limits  of  the  contract,  and  it  was  simply 
impossible  that  goods  could  be  carried  between  those  places  in  pur- 
suance of  a  contract  expressly  providing  for  an  entirely  different 
transportation,  or  a  transportation  between  two  other  places  on  a 


232  CARRIERS   OF   GOODS. 

different  route.  While  twenty-five  dollars  per  ear  freight  might 
have  been  a  reasonable  or  a  reduced  rate  for  transportation  from  Oil 
City  to  Corry,  it  may  have  been  an  entirely  inadeijuate  or  an  exorbi- 
tant rate  for  transporting  the  same  property  from  Corry  to  Broctou, 
from  Brocton  to  Buffalo,  or  Buffalo  to  Albany.  It  is  certainly 
improbable  that  the  same  freight  was  to  be  the  compensation  to 
each  of  the  railroad  companies  b}'  whom  the  oil  should  be  carried 
in  its  transit  to  Albany. 

The  contract  was  not  intended  as  a  through  contract.  The  plain- 
tilPf  has  no  claim  under  it  either  against  the  Atlantic  and  Great 
Western  Eailway  Company  or  any  of  the  connecting  roads  for  the 
carriage  of  the  goods  beyond  Corry,  and  it  necessarily  follows  that 
Its  stipulations  did  not  extend  to  or  affect  the  carriage  beyond  that 
place. 

The  Camden  and  Amboy  11.  &  T.  Co.  were  held  liable  as  common 
carriers  under  a  contract  somewhat  like  this,  made  with  the  Penn- 
sylvania Railroad  Company,  under  which  the  goods  were  transported 
by  the  latter  company  to  Pliiladelphia  and  there  delivered  to  tlie 
former  company.     C.  &  A.  K.  &  T.  Co.  v.  Forsythe,  61  Penn.  R.  81. 

Bristol  &  Exeter  Railway  Co.  v.  Cummings,  5  H.  and  X.  9G9, 
merely  held,  carrying  out  the  doctrine  of  Muschamj)  v.  The  Lancaster 
«S;  Preston  Junction  Railway  Co.,  8  ^I.  and  W.  421,  which  has  not 
been  followed  in  this  State,  that  the  contract  of  carriage  in  that 
case  was  a  through  contract  made  by  the  Great  Western  Railway 
Co.  for  the  carriage  of  the  goods  to  their  ultimate  destination,  and 
that  the  contracting  carrier  was  solely  liable  for  the  loss  of  the  goods 
in  transit,  althougli  they  were  lost  while  in  course  of  transportation 
by  the  defendant  who  received  them  from  the  first  carrier  at  the 
terminus  of  its  road  for  transportation  to  the  place  to  wliioli  they 
were  directed.  This  case  would  not  be  followed  with  \is,  but  each 
carrier  would  be  held  responsible  for  a  loss  or  damage  to  the  goods 
while  in  his  custody,  and  the  only  question  would  be  as  to  the  extent 
of  Ids  liability,  and  whether  he  was  entitled  to  the  benefit  of  any 
stipulation.s  in  the  contract  made  with  the  first  carrier. 

The  defendant,  u])on  tlie  case  made  and  facts  found  by  the  judge 
at  tlu!  trial,  was  subject  to  all  the  connnon-law  liabilities  of  carriers, 
and  the  stipulations  of  the  contract  with  tlie  Atlantic  and  G.  W.  I{. 
Co.  did  not  extend  to  the  transi)ortation  of  the  goods  by  the  defend- 
ant. It  is  not  necessary  to  consider  at  this  time  the  liability  of 
the  parties,  in  case  it  should  appear  that  tlie  oil  was  being  carried 
at  a  reduced  rate  of  freight. 

Judgment  must  be  reversed  and  a  new  trial  granted.' 

1  KIFF  r.  ATCHI.SON,  TOI'KKA  &  SANTA   FK  U.  (0. 

[VI  Kun.  'J03.     is'^J. 

Ilcnn,  .1 

The  evidence  shown  that  on  Ajiril  2Sth,  1883,  tho  Cleveland  Co-operative  Stove 


THE    BILL   OF   LADING,  233 

6.    THE   BILL   OF   LADING, 
a.  ^5  a  Contract. 

THE   DELAWARE. 
14  Wall.  (U.  S.)  579.     1871. 

Appeal  from  the  Circuit  Court  of  the  District  of  California,  the 
case  being  thus :  — 

The  Oregon  Iron  Company,  on  the  8th  day  of  May,  1868,  shipped 
on  board  the  bark  "Delaware,"  then  at  Portland,  Oregon,  76  tons  of 
pig-iron,  to  be  carried  to  San  Francisco,  at  a  freight  of  $4.50  a  ton. 
The  bill  of  lading  was  in  these  words :  — 

*'  Shipped,  in  good  order  and  condition,  by  Oregon  Iron  Company,  on 
board  the  good  bark  'Delaware,'  Shillaber,  master,  now  lying  in  the  port  of 
Portland,  and  boimd  to  San  Francisco,  to  say  seventy-five  tons  pig-iron,  more 

Company,  of  St.  Louis,  delivered  to  the  Missouri  Pacific  Railway  Company,  iu 
St.  Louis,  the  stoves  in  question,  to  be  by  it  transported  to  Hutchinson,  Kansas, 
and  there  delivered  to  plaintiff.  The  railroad  company,  on  delivery  of  the  stoves, 
delivered  to  the  shippers  a  duplicate  receipt,  of  which  the  following  is  a  copy  :  —    ' 

"  St.  Louis,  April  28th,  1883. 
'*  Received  from  the  Cleveland  Co-operative  Stove  Company,    St.   Louis   Branch, 
2900  Eleventh  Street,  by  Mo.  Pac.  R.  R.,  the  following  property,  to  be  delivered  in 
like  good  order,  as  addressed,  without  delay,  at  consignor's  risk  : 

FOR    G.    B.    KIFF,    ESQ.,    HUTCHINSON,    KANSAS. 


Articles. 


3  cooking  stoves. 

3  stove  sections,  weight  690,  W. 


Marks. 


Owner's  risk. 

"  This  duplicate  dray  ticket  is  sent  you  as  a  memorandum  by  which  to  check  off 
goods.  If  the  stoves,  bundles,  pieces,  etc.,  do  not  agree  with  this,  or  the  freight  bill 
is  overcharged,  please  return  to  us  your  freight  bill  at  once,  with  this,  noting  thereon 
the  charges,  and  we  will  attend  to  the  matter  with  pleasure  promjitly." 

This  receipt  is  the  only  contract  for  transportation  of  the  stoves  shown  by  the 
evidence,  and  under  it  they  were  transported,  and  on  their  arrival  in  Hutchinson  were 
found  to  be  broken  and  damaged.  The  evidence  shows  that  the  stoves  were  carried  by 
the  Missouri  Pacific  Railway  Company  over  a  portion  of  its  line  and  delivered  to  the 
San  Francisco  Railroad  Company,  which  carried  them  to  Emporia,  and  there  delivered 
them  to  defendant,  which  carried  them  to  Hutchinson.  Each  of  these  connecting 
lines  of  transportation  is  entitled  to  the  benefit  of  the  special  contract  between  the 
shippers  and  the  Missouri  Pacific  Railway  Company,  and  either  of  them,  when  sued, 
may  claim  the  exemption  of  the  contract.  Wliitworth  et  al.  v.  Erie  Railway  Co., 
87  N.  Y.  414. 


234  CARRIERS   OF   GOODS. 

or  less  (contents,  quality,  and  weight  unknown),  being  marked  as  in  the 
margin,  and  are  to  be  deUvered  in  like  good  order  and  condition  at  the 
aforesaid  port  of  San  Francisco,  at  ship's  tackles  (the  dangers  of  the  seas, 

fire,  and  collision  excepted)  unto ,  or  assigns,  he  or  they  paying  freight 

for  the  said  goods  in  United  Sfcvtes  gold  coin  (before  delivery,  if  required)  as 
per  margin,  with  5  per  cent,  primage  and  average  accustomed. 

'•  In  witness  wliereof  the  master  or  agent  of  said  vessel  hath  affirmed  to 
three  bills  of  lading,  all  of  this  tenor  and  date  ;  one  of  which  being  accom- 
plished, the  others  to  stand  void.  Vessel  not  accountable  for  breakage, 
leakage,  or  rust. 

'•  C.  E.   SuiLLABEU, 
"  P0KTL.VNP,  May  8th,  1868.  For  tlic  Captain." 

The  iron  was  not  delivered  at  San  Francisco;  and  on  a  libel  filed 
by  the  Iron  Company,  the  defence  set  up  was  that  by  a  verbal  agree- 
ment made  between  the  Iron  Company  and  the  master  of  the  ship 
before  the  shipment  or  the  signing  of  the  bill  of  lading,  the  iron 
was  stowed  on  deck,  and  that  the  whole  of  it,  with  the  exception  of 
6  tons  and  9»»  lbs. ,  had  been  jettisoned  in  a  storm. 

On  the  trial,  the  owners  of  the  vessel  oftered  proof  of  this  parol 
agreement.  The  libellants  objected,  and  the  court  excluded  the 
evidence  on  the  ground  that  parol  proof  was  inadmissible  to  vary 
the  bill  of  lading;  and  decreed  in  favor  of  the  libellants  for  the  iron 
that  was  thrown  overboard.  On  appeal  the  case  was  disjiost-d  of  in 
the  same  way  in  the  Circuit  Court.  It  was  now  here;  the  question 
being,  as  in  the  two  courts  below,  whether  in  a  suit  upon  a  bill  of 
lading  like  the  one  here,  for  non-delivery  of  goods  stowed  on  deck, 
and  jettisoned  at  sea,  it  is  competent,  in  the  absence  of  a  custom  to 
stow  such  goods  on  deck,  to  prove  by  parol  a  verbal  agreement  for 
such  stowage. 

Mr.  Justice  Clifford 

Seventy-five  tons  of  pig-iron  were  shipped  by  the  libellants,  on 
the  Stli  day  of  May,  ISOS,  on  board  the  bark  "Delaware,"  then 
lying  in  the  port  of  Portland,  (Jregon,  to  be  transported  from  tiiat 
port  to  the  port  of  San  Francisco,  for  the  freight  of  four  dollars  and 
fifty  cents  per  ton,  to  be  delivered  to  the  shippers  or  their  assigns 
at  the  port  of  destination,  they  paying  freight  as  therein  stipulated, 
before  delivery  if  required,  witli  five  per  cent  i)rimage  and  average 
accustomed.  Dangers  of  the  seas,  fire,  and  collision  were  excepted 
in  the  bill  of  lading,  and  the  statement  at  the  close  of  the  instru- 
ment was,  "vessel  not  accountable  for  breakage,  leakage,  or  rust." 

Process  was  served,  and  the  claimant  appeared  and  filed  an  answer 
in  wliich  lie  admits  the  sliipment  of  the  iron  and  the  oxeeuti(m  of 
the  bill  of  lading  exhiljited  in  tlie  record.  Sullieient  also  appears 
in  the  record  to  show  that  the  voyage  was  ijerformed  and  that  but  a 
small  portion  of  the  iron  shipped  — to  wit.  some  thirteen  or  fourteen 
thousand  pcmnds  —  was  ever  (lelivered  to  tlie  consignees,  and  that  all 
the   residue  of  the  shipment  was  tiirown  overboard  as  a  jettison 


THE   BILL   OF  LADING.  235 

(luring  the  voyage,  which  became  necessary  by  a  peril  of  the  sea, 
for  the  safety  of  the  other  associate  interests  and  for  the  preserva- 
tion of  the  lives  of  those  on  board.  Sacrificed  as  all  that  portion 
of  the  shipment  was  as  a  jettison  in  consequence  of  a  peril  of  the 
sea,  excepted  in  the  bill  of  lading,  the  claimant  insists  that  the 
libellants  have  no  claim  against  the  ship,  and  that  the  libellants  as 
the  shippers  of  the  iron  must  bear  their  own  loss. 

Evidence  was  exhibited  by  the  claimant  sufficient  to  show  that 
the  allegations  of  the  answer  that  the  iron,  not  delivered,  was  sacri- 
.  ficed  during  the  voyage  as  a  jettison  in  consequence  of  a  peril  of  the 
sea,  are  true,  but  the  libellants  allege  that  the  iron  was  improperly 
stowed  upon  the  deck  of  the  vessel,  and  that  the  necessity  of  sacri- 
ficing it  as  a  jettison  arose  solely  from  that  fact,  and  that  no  such  a 
necessity  would  have  arisen  if  it  had  been  properly  stowed  under 
deck,  as  it  should  have  been  by  the  terms  of  the  contract  specified 
in  the  bill  of  lading.  That  the  iron  not  delivered  was  stowed  on 
deck  is  admitted,  and  it  is  also  conceded  that  where  goods  are 
stowed  in  that  way  without  the  consent  of  the  shipper  the  carrier  is 
liable  in  all  events  if  the  goods  are  not  delivered,  unless  he  can 
shoAv  that  the  goods  were  of  that  description,  which,  by  the  usage 
of  the  particular  trade,  are  properly  stowed  in  that  way,  or  that  the 
delivery  was  prevented  by  the  act  of  God  or  the  public  enemy,  or 
by  some  other  cause  or  accident,  without  any  fault  or  negligence  on 
the  part  of  the  carrier  and  expressly  excepted  in  the  bill  of  lading. 

Goods,  though  lost  by  perils  of  the  sea,  if  they  were  stowed  on 
deck  without  the  consent  of  the  shipper,  are  not  regarded  as  goods 
lost  by  the  act  of  God  within  the  meaning  of  the  maritime  law,  nor 
are  such  losses  regarded  as  losses  by  perils  of  the  sea  which  will 
excuse  the  carrier  from  delivering  the  goods  shipped  to  the  con- 
signee unless  it  appears  that  the  manner  in  which  the  goods  were 
stowed  is  sanctioned  by  commercial  usage,  or  unless  it  affirmatively 
appears  that  the  manner  of  stowage  did  not,  in  any  degree,  con- 
tribute to  the  disaster;  that  the  loss  happened  without  any  fault  or 
negligence  on  the  part  of  the  carrier,  and  that  it  could  not  have 
been  prevented  by  human  skill  and  prudence,  even  if  tlie  goods  had 
been  stowed  under  deck,  as  required  by  the  general  rules  of  the 
maritime  law.* 

Enough  appears  in  the  record  to  show  that  all  tlie  iron  not 
delivered  to  the  consignees  was  stowed  on  deck,  and  tliere  is  no 
proof  in  the  case  to  show  that  the  usage  of  the  trade  sanctioned  such 
a  stowage  in  this  case,  or  that  the  manner  in  which  it  was  stowed 
did  not  contribute  both  to  the  disaster  and  to  the  loss  of  the  goods.'' 

None  of  these  principles  are  controverted  by  the  claimant,  but  he 
insists  that  the  iron  not  delivered  was  stowed  on  deck  by  the  consent 
of  the  shippers  and  in  pursuance  of  an  oral  agreement  between  the 

1  Lawrence  et  al.  v.  Minturn,  17  Howard,  114 ;  The  Peytona,  2  Curtis,  23. 
3  Gould  V.  Oliver,  4  Bingham's  New  Cases,  142;  Story  on  Bailment,  §  531. 


236  CARRIERS    OF   GOODS. 

carrier  and  the  shippers  consummated  before  the  iron  was  sent  on 
board,  and  before  the  bill  of  lading  was  executed  b}-  the  master. 
Pursuant  to  that  theory,  testimony  was  offered  in  the  District  Court 
showing  tliat  certain  conversations  took  place  between  the  consignee 
of  the  bark  and  the  agent  of  the  shippers  tending  to  prove  that  the 
shippers  consented  that  the  iron  in  question  should  be  stowed  on 
the  deck  of  the  vessel.  Whether  any  express  exceptions  to  the 
admissibility  of  the  evidence  was  taken  or  not  does  not  distinctly 
appear,  but  it  does  appear  that  the  question  whether  the  evidence 
was  or  not  admissible  was  the  principal  question  examined  by  the 
District  Court,  and  the  one  upon  which  the  decision  in  the  case 
chiefly  turned.  Apparently  it  was  also  the  main  point  examined  in 
the  Circuit  Court,  and  it  is  certain  tliat  it  has  been  treated  by  both 
sides  in  this  court  as  the  principal  issue  involved  in  the  record,  and 
in  view  of  all  the  circumstances  the  court  here  decides  that  it  must 
be  considered  that  the  question  as  to  the  admissibility  of  the  evi- 
dence is  now  open  for  revision,  as  the  decree  for  the  libellant  was 
equivalent  to  a  ruling  rejecting  the  evidence  offered  in  defence  or  to 
a  ruling  granting  a  motion  to  strike  it  out  after  it  had  been  admitted, 
which  is  a  course  often  pursued  by  courts  in  cases  where  the  ques- 
tion deserves  examination.  What  the  claimant  offered  to  prove  was 
that  the  iron  was  stowed  on  deck  with  the  consent  of  the  shippers, 
but  the  libellants  objected  to  the  evidence  as  repugnant  to  the  con- 
tract set  forth  in  the  bill  of  lading,  and  the  decree  was  for  the  libel- 
lants, which  was  equivalent  to  a  decision  that  the  evidence  offered 
was  incompetent.  Dissatisfied  with  that  decree,  the  respondent 
appealed  to  the  Circuit  Court,  where  the  decree  of  the  District  Court 
was  affirmed,  and  the  same  party  appealed  from  tliat  decree  and 
removed  the  cause  into  this  court  for  re-examination. 

Even  without  any  further  explanation  it  is  obvious  that  the  only 
question  of  any  importance  in  the  case  is  whether  the  evidence 
offered  to  show  tliat  the  iron  in  question  was  stowed  on  deck  with 
the  consent  of  the  8hi])pers  was  or  was  not  ])roiierly  rejected,  as  it  is 
clear  if  it  was,  that  the  decree  must  be  affirmed;  and  it  is  equally 
clear,  if  it  should  have  been  admitted,  that  the  decree  must  be 
reversed.^ 

Differttnt  definitions  to  the  commercial  instrument,  callfd  the  bill 
of  lading,  have  been  given  by  different  courts  and  jurists,  but  the 
correct  one  apjicars  to  be  that  it  is  a  written  acknowledgment, 
signed  by  the  master,  that  he  has  received  the  goods  therein  described 
from  the  shipper,  to  be  transported  on  the  terms  therein  exi)ressed, 
to  the  describetl  place  of  destination,  and  there  to  be  delivered  to 
the  consignee  or  parties  therein  designated.'^     Regularly  the  goods 

»  Ar.;.'.ll  <,u  rnmcrs.  §  212  ;  RedfieM  on  Corricr»,  §§  247  to  209  ;  The  St.  Clou.l, 
Brow  /loll  A'hiir.  4. 

'  ^liippi'iK,  7tli  Am.  «1.  .323  ;  O'Brien  v.  fJil.'hrist.  34  Mniim,  .^.^8  [247J ; 

I  Pamonii  on  .Shipping,  186  ;  Machlachlan  on  Shipping,  338  ;  Kmerigon  on  hiB.  251. 


THE   BILL   OF   LADING.  237 

ought  to  be  on  board  before  the  bill  of  lading  is  signed;  but  if  the 
bill  of  lading,  through  inadvertence  or  otherwise,  is  signed  before 
the  goods  are  actually  shipped,  as  if  they  are  received  on  the  wharf 
or  sent  to  the  warehouse  of  the  carrier,  or  are  delivered  into  the 
custody  of  the  master  or  other  agent  of  the  owner  or  charterer  of  the 
vessel,  and  are  afterwards  placed  on  board,  as  and  for  the  goods 
embraced  in  the  bill  of  lading,  it  is  clear  that  the  bill  of  lading  will 
operate  on  those  goods  as  between  the  shipper  and  the  carrier  by 
way  of  relation  and  estoppel,  and  that  the  rights  and  obligations  of 
all  concerned  are  the  same  as  if  the  goods  had  been  actually  shipped 
before  the  bill  of  lading  had  been  signed.^  Such  an  instrument  is 
twofold  in  its  character;  that  is,  it  is  a  receipt  as  to  the  quantity 
and  description  of  the  goods  shipped,  and  a  contract  to  transport 
and  deliver  the  goods  to  the  consignee  or  other  person  therein 
designated,  and  upon  the  terms  specified  in  the  same  instrument.'^ 
Beyond  all  doubt  a  bill  of  lading,  in  the  usual  form,  is  a  receipt  for 
the  quantity  of  goods  shipped  and  a  promise  to  transport  and  deliver 
the  same  as  therein  stipulated.^  Receipts  may  be  either  a  mere 
acknowledgment  of  payment  or  delivery,  or  they  may  also  contain  a 
contract  to  do  something  in  relation  to  the  thing  delivered.  In  the 
former  case,  and  so  far  as  the  receipt  goes  only  to  acknowledge  the 
payment  or  delivery,  it,  the  receipt,  is  merely />ri?rea  facie  evidence 
of  the  fact,  and  not  conclusive,  and  therefore  the  fact  which  it 
recites  may  be  contradicted  by  oral  testimony,  but  in  so  far  as  it  is 
evidence  of  a  contract  between  the  parties  it  stands  on  the  footing 
of  all  other  contracts  in  writing,  and  cannot  be  contradicted  or  varied 
by  parol  evidence.*  Text-writers  mention  the  bill  of  lading  as  an 
example  of  an  instrument  which  partakes  of  a  twofold  character, 
and  such  commentators  agree  that  the  instrument  may,  as  between 
carrier  and  shipper,  be  contradicted  and  explained  in  its  recital  that 
the  goods  were  in  good  order  and  well  conditioned,  by  showing  that 
their  internal  state  and  condition  was  bad,  or  not  such  as  is  repre- 
sented in  the  instrument,  and  in  like  manner,  in  respect  to  any 
other  fact  which  it  erroneously  recites,  but  in  all  other  respects  it 
is  to  be  treated  like  other  written  contracts.^ 

Bills  of  lading  when  signed  by  the  master,  duly  executed  in  the 
usual  course  of  business,  bind  the  owners  of  the  vessel  if  the  goods 
were  laden  on  board  or  were  actually  delivered  into  the  custody  of 

1  Rowley  v.  Bigelow,  12  Pickoring,  307  ;  The  Eddy,  5  Wallace,  495. 

2  Maclachlan  on  Shipping,  338-9  ;  Smith's  Mercantile  Law,  6th  ed.  308. 

8  Bates  V.  Todd,  1  Moody  &  Robinson,  106  ;  Berkley  v.  Watling,  7  Adolphus  & 
Ellis,  29  ;  Wayland  v.  Mosely,  5  Alabama,  430  ;  Brown  v.  Byrne,  3  Ellis  &  Black- 
bume,  714  ;  Blaikie  v.  Stembridge,  6  C.  B.  N.  s.  907. 

*  1  Greenleaf  on  Evidence,  12th  ed.  §  305;  Bradley  v.  Dunipace,  1  Hurlstone  & 
Colt,  525. 

6  Hastings  v.  Pepper,  11  Pickering,  42  ;  Clark  v.  Barnwell  d  al.,  12  Howard,  272 : 
Ellis  V.  Willard,  5  Selden,  529  ;  May  v.  Babcock,  4  Ohio,  346  ;  Adams  v.  Packet  Co., 
5  C.  B.  N.  s.  492  ;  Sack  v.  Ford,  13  "c.  B.  n,  s.  100. 


238  CARRIERS   OF   GOODS. 

the  master;  but  it  is  well-settled  law  that  the  owners  are  not  liable 
if  the  party  to  whom  the  bill  of  lading  was  given  had  no  goods,  or 
the  goods  described  in  the  bill  of  lading  were  never  put  on  board  or 
delivered   into  the  custody  of  the  carrier  or  his  agent. ^     I'roof  of 
fraud  is  certainly  a  good  defence  to  an  action  claiming  damages  for 
the  non-delivery  of  the  goods;  but  it  is  settled  law  in  this  court  that 
a  clean  bill  of  lading  imports  that  the  goods  are  to  be  safely  and 
properly  stowed  under  deck,  and  that  it  is  the  duty  of  the  master  to 
see  that  the  cargo  is  so  stowed  and  arranged  that  the  different  goods 
may  not  be  injured  by  each  other  or  by  the  motion  or  leakage  of  the 
vessel,  unless  by  agreement  that  service  is  to  be  performed  by  the 
shipper.'     Express  contracts  may  be  made  in   writing  which   will 
detine  the  obligations  and  duties  of  the  parties,  but  where  those 
obligations  and  duties  are  evidenced  by  a  clean  bill  of  lading,  — that 
is,  if  the  bill  of  lading  is  silent  as  to  the  mode  of  stowing  the  goods, 
and  it  contains  no  exceptions  as  to  the  liability  of  the  master,  except 
the  usual  one  of  the  dangers  of  the  sea,— the  law  provides  that  the 
goods  are  to  be  carried  under  deck,  unless  it  be  shown  that  the  usage 
of  the  particular  trade  takes  the  case  out  of  the  general  rule  applied 
in  such  controversies.'     Evidence  of  usage  is  admissible  in  mercan- 
tile contracts  to  prove   that  the  words   in   which   the   contract    is 
expressed,  in  the  particular  trade  to  which  the  contract  refers,  are 
used  in  a  particular  sense  and  different  from  the  sense  which  they 
ordinarily  import;  and  it  is  also  admissible  in  certain  cases,  for  the 
purpose  of  annexing  incidents  to  the  contract  in  matters  upon  which 
the  contract  is  silent,  but  it  is  never  admitted  to  make  a  contract  or 
to  add  a  new  element  to  the  terms  of  a  contract  previously  made  by 
the  parties.     Such  evidence  may  be  introduced  to  explain  what  is 
amljiguous,  but  it  is  never  admissible  to  vary  or  contradict  what  is 
plain.     Evidence  of  the  kind  may  be  admitted  for  the  purpose  of 
defining  what  is  uncertain,  but  it  is  never  i)roperly  admitted  to  alter 
a  general  rule  of  the  law,  nor  to  make  the  legal  rights  or  liabilities 
of  the  parties  other  or  ditferent  from  what  they  are  by  the  common 
law.*     Cases   may   arise    where   such    evidence    is   admissible    and 
material,  but  as  none  such  was  offered  in  this  case  it  is  not  neces- 
sary to  pursue  that  inquiry.      Exceptions  also  exist  to  the  rule  that 
parol  evidence  is  not  admissible  to  vary  or  contradict  the  terms  of 

»  The  Schooner  Freomun,  18  Howard,  187;  Miiu.le  &  r.)llock  on  SliippinR.  233; 
Grant  v.  Norway,  10  C.  li.  605  ;  Zipsy  v.  Hill,  Foster  &  Finelly,  673  ;  Meyer  v. 
I)r.  „.r,  16  U.  B.  N.  h.  657. 

-  The  Cordes,    21    Howard,  23;   Sandeman  V.  Scurr,  Law  Reports,  2  Q.  B.  98; 

.  Oarrick,  2  Law  Journal,  N.  S.  Exchoipier,  355  ;    African  Co.  r.  Latnzed, 
■\  1  C.  r.  229;  Alston  v.  Hi-rinn,  11  Kxclic.pnT,  822. 

-  .\:  ■  .u  on  .Shipping  (7th  Atn.  ed.),  345  ;  Smith  v.  Wri«ht.  1  Cain.  13  ;  CouM  v. 
Oliver,  2  Manning  &  Granger,  208;  Waring  v.  Morse,  7  Alabama,  343  ;  Falkner  V. 
Earle.  3  lieHt  &  Smith,  363. 

«  Oolrickh  P.  Ford.  23  Howard,  63;  Barnard  v.  Kellogg  et  nl,  Kt  Wallace,  383; 
Bimmonn  r.  Uw,  3  K.yejt,  219  ;  Sjartali  v.  Beneck"-,  10  C.  H.  222. 


THE    BILL    OF   LADING.  239 

a  written  instrument  where  it  appears  that  the  instrument  was  not 
within  the  Statute  of  Frauds  nor  under  seal,  as  where  the  evidence 
offered  tends  to  prove  a  subsequent  agreement  upon  a  new  consider- 
ation. Subsequent  oral  agreements  in  respect  to  a  prior  written 
agreement,  not  falling  within  a  statute  of  frauds,  may  have  the 
effect  to  enlarge  the  time  of  performance,  or  may  vary  any  other  of 
its  terms,  or,  if  founded  upon  a  new  consideration,  may  waive  and 
discharge  it  altogether.-^  Verbal  agreements,  however,  between  the 
parties  to  a  written  contract,  made  before  or  at  the  time  of  the 
execution  of  the  contract,  are  in  general  inadmissible  to  contradict 
or  vary  its  terms  or  to  affect  its  construction,  as  all  such  verbal 
agreements  are  considered  as  merged  in  the  written  contract.^ 

Apply  that  rule  to  the  case  before  the  court  and  it  is  clear  that 
the  ruling  of  the  court  below  was  correct,  as  all  the  evidence  offered 
consisted  of  conversations  between  the  shippers  and  the  master 
before  or  at  the  time  the  bill  of  lading  was  executed.  Unless  the 
bill  of  lading  contains  a  special  stipulation  to  that  effect,  the  master 
is  not  authorized  to  stow  the  goods  sent  on  board  as  cargo  on  deck, 
as  when  he  signs  a  bill  of  lading,  if  in  the  common  form,  he  con- 
tracts to  convey  the  merchandise  safely,  in  the  usual  mode  of  con- 
veyance, which,  in  the  absence  of  proof  of  a  contrary  usage  in  the 
particular  trade,  requires  that  the  goods  shall  be  safely  stowed  under 
deck ;  and  when  the  master  departs  from  that  rule  and  stows  them 
on  deck,  he  cannot  exempt  either  himself  or  the  vessel  from  liability, 
in  case  of  loss,  by  virtue  of  the  exception,  of  dangers  of  the  seas, 
unless  the  dangers  were  such  as  would  have  occasioned  the  loss  even 
if  the  goods  had  been  stowed  as  required  by  the  contract  of  affreight- 
ment.^ Contracts  of  the  master,  within  the  scope  of  his  authority 
as  such,  bind  the  vessel  and  give  the  creditor  a  lien  upon  it  for  his 
security,  except  for  repairs  and  supplies  purchased  in  the  home 
port,  and  the  master  is  responsible  for  the  safe  stowage  of  the  cargo 
under  deck,  and  if  he  fails  to  fulfil  that  duty  he  is  responsible  for 
the  safety  of  the  goods,  and  if  they  are  sacrificed  for  the  common 
safety  the  goods  stowed  under  deck  do  not  contribute  to  the  loss.* 
Shipowners  in  a  contract  by  a  bill  of  lading  for  the  transportation 
of  merchandise  take  upon  themselves  the  responsibilities  of  common 
carriers;  and  the  master,  as  the  agent  of  such  owners,  is  bound  to 
have  the  cargo  safely  secured  under  deck,  unless  he  is  authorized  to 

1  Emerson  v.  Slater,  22  Howard,  41  ;  Gross  v.  Nugent,  5  Barnewall  &  Ailolplius, 
65  ;  Nelson  v.  Boynton,  3  Metcalf,  402  ;  1  Greenleaf  on  Evidence,  303  ;  Harvey  v. 
Grabham,  5  Adolphus  &  Ellis,  61. 

2  Ruse  V.  Ins.  Co.,  23  N.  Y.  519  ;  Wheelton  i'.  Hardisty,  8  Ellis  &,  IMackburn, 
296  ;  2  Smith's  Leading  Cases,  758  ;  Angell  on  Carriers,  4th  ed.,  §  229. 

8  The  Rebecca,  Ware,  210  ;  Dodge  v.  Bartol,  5  Greenleaf,  286  ;  Walcott  v.  Ins. 
Co.,  4  Pickering,  429  ;  Cooper  Co.  v.  Ins.  Co.,  22  id.  108  ;  Adams  v.  Ins.  Co.,  id. 
163. 

*  The  Paragon,  Ware,  329,  331  ;  2  Phillips  on  Insurance,  §  704  ;  Brooks  v.  In- 
surance Co.,  7  Pickering,  259. 


240  CARRIERS   OF   GOODS. 

carry  the  goods  on  deck  by  the  usage  of  the  particular  trade  or  by 
the  consent  of  the  sliiiijier,  and  if  he  would  rely  u})on  the  latter  he 
roust  take  care  to  require  that  the  consent  shall  be  expressed  in  a 
form  to  be  available  as  evidence  under  the  general  rules  of  law.^ 

Where  goods  are  stowed  under  deck  the  carrier  is  bound  to  prove 
the  casualty  or  vis  major  which  occasioned  the  loss  or  deterioration 
of  the  property  which  he  undertook  to  transport  and  deliver  in  good 
condition  to  the  consignee,  and  if  he  fails  to  do  so  the  shipper  or 
consignee,  as  a  general  rule,  is  entitled  to  his  remedy  for  the  non- 
delivery of  the  goods.     No  such  consequences,  however,  follow  if 
the  goods  were  stowed  on  deck  by  the  consent  of  the  shipper,  as  in 
that  event  neither  master  nor  the  owner  is  liable  for  any  damage 
done  to  the  goods  by  the  perils  of  the  sea  nor  from  the  necessary 
exposure  of  the  property,  but  the  burden  to  prove  such  consent  is 
upon  the  carrier,  and  he  must  take  care  that  he  has  competent  evi- 
dence to  prove  the  fact.^     Parol  evidence,  said  ^Ir.  Justice  Nelson, 
in  the  case  of  Creery  v.  Holly,'  is  inadmissible  to  vary  the  terms  or 
legal  imix)rt  of  a  bill  of  lading  free  of  ambiguity;  and  it  was  accord- 
ingly held  in  that  case  that  a  clean  bill  of  lading  imports  that  the 
goods  are  stowed  under  deck,  and  that  parol  evidence  that  the  vendor 
agreed  that  the  goods  should  be  stowed  on  deck  could  not  legally  be 
received  even  in  an  action  by  the  vendor  against  tlie  })urcliaser  for 
the  price  of  the  goods  which  were  lost  in  consequence  of  the  stowage 
of  the  goods  in  that  manner  by  the  carrier.     Even  where  it  appeared 
that  the  shipper,  or  his  agent  who  delivered  the  goods  to  the  carrier, 
rejicatedly  saw  them  as  they  were  stowed  in  that  way  and  made  no 
objection  to  their  being  so  stowed,  the  Supreme  Court  ot  Maine  held 
that  the  evidence  of  those  facts  was  not  admissible  to  vary  the  legal 
import  of  the  contract  of  slajjuient;  that  the  bill  of  lading  being 
what  is  called  a  clean  bill  of  lading,   it  bound  the  owners  of  the 
vessel    to  carry  the  goods  under  deck,  but  the  court  admitted  tliat 
where  there  is  a  well-known  usage  in  reference  tf)  a  particular  trade 
to  carry  the  goods  as  convenience  may  require,  either  upon  or  under 
deck,  the  bill   of  lading  may  import  no  more  than  that  the  cargo 
sliall  \)e  carried  in  the  usual  manner.*     Testimony  to  prove  a  verbal 
agreement  that  the  goods  miglit  be  stowed  on  deck  was  ofTered  by 
the  defence  in  the  case  of  Barber  v.  Brace;*  but  tlie  court  rejected 
tlie  testimony,  holding  that  the  whole  conversation,  both  before  and 
at  the  time  the  writing  was  given,  was  merged  in  the  written  instru- 
ment,   wliicli   undoubtedly    is   the   correct   rule    upon    the   subject. 

>  Tlu;  Waldo,  I)avii-«,  102  ;    IMuckctt  r.  Kxclmiige  Co.,  2  ("ron)].ton  &  .Iirvis,  250  ; 
1  AmoiiM  on  Iiiniiniiir«',  Q'J  ;  Lt-nox  i^.  InHurnncu  Co.,  3  JolinKon'H  discs,  178. 
»  .ShtirkI«-for<l  V.  Wilcox,  y  I^Miisiniin,  :}8.  »  14  Wendell,  'JS. 

*  .Sj.rcrtl  r.  Donndl,  26  Miiine,  187  ;  2  Tuylor  on  Kvi.lcncc.  §§  l(i02.  1007  ;  Hojmj 
«.  8Ut<r  n.ink,  4  IxuUiuiiii,  2\'2  :  1  Arnould  on  In.surancc,  70;  Lii|pliuni  v.  In.surnnce 
Co.,  24  I'i'  ki-rin;;,  1. 

*  3  C.i.t...  li.iit,  1  1. 


THE   BILL   OF   LADING.  241 

Written  instruments  cannot  be  contradicted  or  varied  by  evidence  of 
oral  conversations  between  the  parties  which  took  place  before  or  at 
the  time  the  written  instrument  was  executed ;  but  in  the  case  of  a 
bill  of  lading  or  a  charter-party,  evidence  of  usage  in  a  particular 
trade  is  admissible  to  show  that  certain  goods  in  that  trade  may  be 
stowed  on  deck,  as  was  distinctly  decided  in  that  case.*  But  evi- 
dence of  usage  cannot  be  admitted  to  control  or  vary  the'  positive 
stipulations  of  a  bill  of  lading,  or  to  substitute  for  the  express  terms 
of  the  instrument  an  implied  agreement  or  usage  that  the  carrier 
shall  not  be  bound  to  keep,  transport,  and  deliver  the  goods  in  good 
order  and  condition.^ 

Eemarks,  it  must  be  admitted,  are  found  in  the  opinion  of  the 
court,  in  the  case  of  Vernard  v.  Hudson,^  and  also  in  the  case  of 
Sayward  v.  Stevens,*  which  favor  the  views  of  the  appellant,  but 
the  weight  of  authority  and  all  the  analogies  of  the  rules  of  evi- 
dence support  the  conclusion  of  the  court  below,  and  the  court  here 
adopts  that  conclusion  as  the  correct  rule  of  law,  subject  to  the 
qualifications  herein  expressed.  Decree  affirmed. 


GARDEN  GROVE  BANK   v.   HUMESTON  &  SHENANDOAH 

RY.    CO. 

67  Iowa,  526.     1885. 

The  plaintiff  seeks  to  recover  of  the  defendant  the  sum  of  $550, 
which  it  advanced  upon  a  bill  of  lading  issued  by  the  defendant 
upon  the  shipment  of  certain  walnut  lumber,  and  which  bill  of  lad- 
ing was  assigned  to  the  plaintiff.  The  right  of  action  is  based  upon 
the  claim  that  the  defendant  failed  to  comply  with  its  contract  of 
shipment,  and  by  negligence  delivered  the  lumber  to  parties  not 
authorized  to  receive  the  same,  by  which  plaintiff  was  damaged  in 
the  amount  advanced,  and  interest.  There  was  a  trial  by  jury,  and 
a  verdict  and  judgment  for  the  defendant.     Plaintiff  appeals. 

RoTHRocK,  J.  The  facts  necessary  to  a  determination  of  the 
questions  of  law  involved  in  the  case  are  not  disputed.  They  are  as 
follows :  One  Henry  Zohn  was  engaged  in  buying  walnut  logs  and 
walnut  lumber  along  the  line  of  the  railroad  of  the  defendant,  and 
shipping  the  same  to  Chicago.  About  the  twentieth  day  of  August, 
1881,  he  caused  three  cars  to  be  loaded  with  said  lumber,  for  ship- 
ment at  Van  Wert,  a  station  on  the  defendant's  railroad.  Zohn 
was  indebted  to  Wells  Bros,  in  the  sum  of  $550  for  this  lumber, 

1  Barber  v.  Brace,  3  Pickering,  13  ;  1  Smith's  Leading  Cases,  6th  American 
edition,  837. 

2  The  Reeside,  2  Sumner,  570 ;    1  Duer  on  Insurance,  §  17. 

*  3  Sumner,  406.  *  3  Graj-,  101. 

16 


242  CARRIERS   OF   GOODS. 

and  on  the  twenty-third  day  of  August,  18S1,  before  auy  bill  of 
lading  was  issued  for  the  shipment  of  the  property,  "Wells  Bros, 
caused  the  lumber  on  said  cars  to  be  attached  to  secure  their  claim 
against  Zohn.  On  the  same  day  Wells  Bros,  and  Zohn  met  at  said 
station,  and  agreed  that  the  bill  of  lading  should  be  issued  to 
Wells  Bros,  as  consignors,  that  they  should  hold  it  as  security 
for  their  claim  against  Zohn,  and  that  they  would  take  such  bill  of 
lading  to  the  Garden  Grove  Bank,  and  draw  a  sufficient  amount  of 
money  thereon  to  pay  the  claim  of  Wells  Bros.  The  conversation 
in  regard  to  this  arrangement  was  in  the  presence  of  the  station 
agent  of  the  defendant,  and  he  knew,  when  he  issued  the  bill  of 
lading,  that  Zohn  and  Wells  Bros,  expected  and  intended  to  use  the 
same  at  the  Garden  Grove  Bank  to  draw  or  receive  money  thereon. 
The  said  agent  thereupon  issued  and  delivered  to  Wells  Bros,  a  bill 
of  lading,  of  which  the  following  is  a  copy:  — 

"  Hl'mkston  &  Shenandoah   R.    II.  Co.      Bill   ok   Lading.      Freight 
Office,   Van   Wert,    August   23,    1881. 

"  Received  from  Wells  Bros.,  in  apparent  good  order,  by  the  Humeston  & 
Shenandoah  R.  R.  Co.,  the  following  described  packages  (contents  and  value 
unknown)  consigned  as  marked  and  numbered  in  the  margin,  upon  the  terms 
and  conditions  hereinafter  contained,  and  which  are  hereby  made  a  part  of 
this  agreement,  also  subject  to  the  conditions  and  regulations  of  the  published 
tariffs  in  u>e  by  said  railroad  company,  to  be  transported  over  the  line  of  tliis 
roa«l  to  Chicago  ."Station,  and  there  delivered  in  like  good  order  to  the  con- 
signee or  owner,  at  said  station,  or  t<»  such  company  or  carriers  (if  same  are 
tt)  be  forwarded  beyond  said  station)  whose  line  may  be  considered  a  part  of 
the  route,  to  the  place  at  destination  of  said  goods  or  packages ;  it  being 
distinctly  understood  and  agreeil  that  the  responsibility  of  this  company  as  a 
common  carrier  shall  cease  at  the  station  where  delivered  or  tendered  to  such 
person  or  carrier ;  but  it  guaranties  that  the  rate  of  freight  for  the  transjxirta- 
tion  of  said  packages  shall  not  exceed  rates  as  specified  below,  and  charges 
advanced  by  this  company,  upon  the  following  conditions  [read  the  condi- 
tions]. The  owner  or  consignee  to  pay  frei;j:ht  or  charges  as  per  specified 
rates  upon  the  goods  as  they  arrive.  Freight  carried  by  the  company  nmst 
Imj  removed  from  the  station  ilnriuff  business  hnurs  on  the  d.'iy  of  its  .irrival.  or 
it  will  be  stired  at  the  owner's  risk  and  expense;  and,  in  the  event  uf  its 
destruction  or  <lamage  from  any  cause  while  in  tin;  depots  of  the  company, 
either  in  transit  or  at  the  ternunal  piint,  it  is  agreed  that  the  coinjiany  shall 
not  l)o  liable  except  as  warehousemen.  It  is  agreed,  and  is  a  part  of  the 
consideration  of  this  agreement,  that  the  company  will  not  be  resj>onsil)le  for 
the  leakage  of  liquors  or  liquids  of  any  kind  ;  breakage  of  gla.ss  or  qneenswanv, 
the  injury  or  breakage  of  castings,  carriages,  furniture,  gla.ss  show-cases, 
liollow-waro  and  lfK)kinK  glasses,  machinery,  musical  instruments  of  any  kind, 
]>acka(;cii  of  ef;g«,  or  picture  frames  ;  loss  of  weight  of  coffee,  or  grain  in  bags, 
or  rice  in  tierces  ;  or  for  any  decay  of  perishable  articles  ;  nor  for  dam.'ige 
arising  from  effects  of  h<*at  or  cold  ;  nor  for  loss  of  nuts  in  bags,  lemons  or 
omn({i'«  in  )K>xes,  utdess  covered  with  canvas  ;  nor  for  loss  or  ilam.ige  of  h.iy, 
hemp,  cotton,  or  any  article  the  bulk  of  whi<h  renders  it  necessary  to  trans- 
port it  iu  op«u  earn,  uulcss  it  can  be  shown  that  such  loss  or  damage  occurred 


THE   BILL   OF   LADING. 


243 


through  negligence  or  default  of  the  agents  of  this  company.  Goods  in  bond 
subject  to  custom-house  regulations  and  expenses.  The  company  is  not 
responsible  for  accidents  or  delays  from  unavoidable  cause  ;  the  responsibility 
of  this  company,  as  carriers,  to  terminate  on  the  delivery  or  tender  of  the 
freight  as  per  this  bill  of  lading  to  the  company  whose  line  may  be  considered 
a  part  of  the  route  to  the  place  of  the  destination  of  said  goods  or  packages. 
In  the  event  of  loss  of  any  property  for  which  the  carriers  may  be  responsible 
under  this  bill  of  lading,  the  value  or  cost  of  the  same  at  the  point  and  time 
of  shipment  is  to  govern  the  settlement  for  the  same,  except  the  value  of  the 
article  has  been  agreed  upon  with  the  shipper,  or  is  determined  by  the  classi- 
fication upon  which  the  rates  are  based.  And  in  case  of  loss  or  damage  of 
any  of  the  goods  named  in  this  bill  of  lading  for  which  the  company  may  be 
liable,  it  is  agreed  and  understood  that  this  company  may  have  the  benefit  of 
any  insurance  effected  by  or  on  account  of  the  owner  of  said  goods.  This 
receipt  to  be  presented  without  erasure  or  alteration. 


Marks  and  consignees. 


Car  No. 


560  A.  &  N 

1006K.S.  J.&C.  B. 
9450  S 


Description  of  Ar- 
ticles given  by  Con- 
signee. 


Walnut  lumber 


Weight,    subject  to 
Correction. 


22,000 
22,000 
22,000 


" Freight  to  be  paid  upon  the  weight  by  the  company's  scales, 

but  no  single  shipment  to  be  rated  at  less  than  100  lbs.  Car-load  freight 
subject  to  the  current  rules  as  to  the  minimum  and  maximum  weights. 
Charges  advanced  (if  any).  This  bill  of  lading  to  he  surrendered  before  prop- 
erty is  delivered. 

"  S.  O.  Campbell,  Freight  Agent." 

The  bill  of  lading  was  issued  and  delivered  on  the  evening  of  the 
twenty-third  day  of  August.  On  the  next  morning  Wells  Bros,  and 
Zohn  appeared  at  the  Garden  Grove  Bank,  and  requested  the  cashier 
to  advance  them  $550  on  said  bill  of  lading.  He  consented  to  do 
so.  Thereupon  Wells  Bros,  assigned  the  bill  of  lading  to  Zohn,  and 
he  assigned  the  same  to  C.  S.  Stearns,  cashier  of  the  bank,  and  at 
the  same  time  Zohn  executed  a  draft  of  $550  in  favor  of  said  cashier 
to  one  J.  H.  Wallace,  of  Chicago,  and  the  bill  of  lading,  and  draft 
attached  thereto,  were  delivered  to  the  cashier  in  consideration 
whereof  he  advanced  and  paid  for  said  bank  to  Wells  Bros,  the  sum 
of  $550. 

It  will  be  observed  that  there  is  no  person  named  as  consignee  in 
the  bill  of  lading.  The  space  under  the  head  of  "  jNIarks  and  Con- 
signees "  is  left  blank.  The  defendant  introduced  parol  evidence  by 
which  it  was  shown  that,  when  the  bill  of  lading  was  issued,  the 
name  of  the  consignee  was  intentionally  omitted,  because  Zohn  had 
not  tlien  determined  to  whom  he  would  ship  the  lumber.  He  did 
not  intend  to  return  to  Van  Wert,  and  he  directed  the  station  agent 
to  ship  to  Stokes  &  Son,  of  Chicago,  unless  he  received  other 
instructions   from   him  by  telegraph.     No  such  instructions  were 


244  CARRIERS   OF   GOODS. 

received,  and,  on  the  next  day,  being  the  same  day  the  plaintiff 
advanced  the  money  on  the  bill  of  lading,  the  agent  of  the  railroad 
company  shipped  the  lumber  consigned  to  Stokes  &  Son,  to  whom 
the  same  was  delivered,  and  it  was  shipped  immediately  to  Canada. 
The  plaintiff  forwarded  the  bill  of  lading  and  draft  to  Chicago,  and 
demanded  the  lumber  of  the  C.  B.  &  Q.  R.  Co.,  the  railroad  con- 
necting with  defendant,  and  delivery  was  refused,  because  a  delivery 
had  already  been  made  to  Stokes  &  Sou.  Wells  Bros,  knew  of  the 
arrangement  between  the  station  agent  and  Zohn,  that  the  lumber 
was  to  be  consigned  to  Stokes  &  Son  unless  Zohn  should  name 
another  consignee;  but  this  arrangement  was  wholl}'  iinknown  to 
the  plaintiff  until  it  was  too  late  to  prevent  the  delivery  of  the 
lumber  to  Stokes  &,  Son. 

The  plaintiff  objected  to  the  parol  evidence  on  the  ground  that  it 
contradicted  the  written  contract  as  evidenced  by  the  bill  of  lading. 
The  objection  was  overruled  and  the  evidence  received,  and  the 
court  instructed  the  jury  as  follows:  "(4)  You  are  instructed  that 
the  bill  of  lading,  as  shown  upon  its  face,  does  not  name  a  con- 
signee, and  does  not  express  the  full  agreement  between  the  parties; 
and  you  are  instructed  that  if  Zohn  and  Wells  Bros,  consented  that 
at  the  time  the  wa^'-bills  should  be  made  to  Stokes  &  Son.  unless 
the  agent  should  be  advised  to  the  contrary,  then  it  was  proper  for 
the  said  agent  to  ship  said  lumber  to  Stokes  &  Son,  and  your  verdict 
should  be  for  the  defendant.  But  if  there  was  no  such  agreement, 
then  the  bill  of  lading  is  a  contract  between  the  parties  thereto, 
whereby  said  defendant  agreed  to  transfer  said  lumber  to  Chicago  to 
Wells  Bros,  or  their  assignee.  The  burden  of  proof  is  upon  the 
defendant  to  establish  said  agreement.  (5)  If  you  find  that  Wells 
Bros,  and  Zohn  went  to  the  bank  of  plaintiff,  in  order  to  get  money 
80  that  Wells  Bros.' claim  could  be  satisfied,  and  you  furtluT  find 
that  Wells  liros.  assigned  tlieir  interest  to  said  Henry  Zolm,  that 
then  Zohn  drew  a  draft  on  Chicago  upon  said  Wallace,  which  said 
draft  was  cashed  by  the  plaintiff,  and  Zohn  then  assigned  and 
delivered  tho  bill  of  lading  to  the  jdaintiff,  then  you  are  instructed 
that  it  was  the  duty  of  }»laintiirs,  in  order  to  jirotect  tlieir  rights,  to 
notify  the  defendant  that  they  were  the  owners  of  said  bill  of  hid- 
ing;  and  if  you  find  that  the  defendant  shii)])ed  said  lumber  to 
Stokes  &  Son,  and  said  consignment  was  with  the  consent  of  Zohn, 
and  he  was  satisfied  with  such  assignment,  and  you  further  find 
that  the  defendant  did  not  know  tliat  said  bill  of  lading  liad  been 
assigned  to  plaintiff,  and  had  no  knowledge  of  jtlaintiff's  rights, 
then  the  jdaintiff  cann(jt  recover  in  this  action,  and  your  verdict 
should  V)e  for  the  defendant." 

These  instructions  are  complained  of  l)y  counsel  for  api)ellant. 
and,  in  connection  with  the  admission  of  the  jtand  evidence,  tlu-y 
present  the  questions  which,  in  our  o]»inion,  are  decisive  of  the. 
rights  of  the  parties.     A  ])ill  of  lading  is  both  a  receipt  and  a  con- 


THE   BILL   OF   LADING.  245 

tract,  and  in  its  character  as  a  contract  it  is  no  more  open  to  expla- 
nation or  alteration  by  parol  than  other  written  contracts.  This 
proposition  seems  to  be  conceded  by  counsel  for  appellee;  and  the 
court  below,  in  the  fourth  instruction  cited  above,  appears  to  have 
been  of  the  opinion  that,  as  the  contract  did  not  name  any  one  as 
consignee,  it  shows  upon  its  face  that  it  does  not  express  the  full 
agreement  between  the  parties,  and  the  parol  evidence  was  doubtless 
admitted  upon  the  ground  that  the  contract  was  partly  in  writing 
and  partly  in  parol.  It  is ,  however,  conceded  in  the  same  instruc- 
tion that  if  it  was  not  agreed  by  parol  that  Zohn  should  designate 
the  consignee,  then  the  bill  of  lading  is  a  contract  whereby  the 
defendant  agreed  to  transfer  the  lumber  to  Chicago  to  Wells  Bros, 
or  their  assignees.  We  think  the  proposition  that  the  bill  of  lading 
shows  on  its  face  that  it  is  an  obligation  to  convey  the  property  to 
Chicago  and  deliver  to  Wells  Bros.,  or  their  assignees,  is  correct, 
and  that  it  is  a  complete  and  valid  contract  not  susceptible  of  expla- 
nation by  parol,  notwithstanding  the  space  left  in  the  instrument  for 
the  name  of  a  consignee  does  not  contain  the  name  of  any  person. 
It  was  an  obligation  to  deliver  the  goods  to  Chicago  to  the 
"consignee  or  owner."  Wells  &  Co.,  according  to  the  contract, 
were  consignors,  consignees,  and  owners.     In  Chandler  v.  Sprague, 

5  Mete.  306,  it  is  said:  "Ordinarily  the  name  of  a  consignee 
is  inserted,  and  then  such  consignee  or  his  indorsee  may  receive 
the  goods  and  acquire  a  special  property  in  them.  Sometimes  the 
shipper  or  consignor  is  himself  named  as  consignee,  and  then  the 
engagement  of  the  shipowner  or  master  is  to  deliver  them  to  him  or 
his  assigns.  Sometimes  no  person  is  named;  the  name  of  the  con- 
signee being  left  blank,  which  is  understood  to  import  an  engage- 
ment on  the  part  of  the  master  to  deliver  the  goods  to  the  person  to 
whom  the  shipper  shall  order  the  delivery,  or  to  the  assignee  of 
such  person;"  citing  Abb.  Shipp.,  4th  Amer.  ed.  215.  See,  also. 
City  Bank  v.  Eailroad  Co.,  44  N.  Y.  136;  Low  v.  De  Wolf,  8  Pick. 
101 ;  Glidden  v.  Lucas,  7  Cal.  26.  In  Hutchinson  on  Carriers,  §  134, 
it  is  said :  "  When  there  has  been  no  agreement  to  ship  the  goods 
which  will  make  the  delivery  of  them  to  the  carrier  a  delivery  to 
the  consignee,  and  vest  the  property  in  him,  the  shipper  may,  even 
after  the  delivery  to  the  carrier,  and  after  the  bill  of  lading  has 
been  signed  and  delivered,  alter  their  destination,  and  direct  their 
delivery  to  another  consignee,  unless  the  bill  of  lading  has  been 
forwarded  to  the  consignee  first  named,  or  to  some  one  for  his  use. 
[Citing  Blanchard  v.  Page,  8  Gray,  285;  Mitchel  v.  Ede,  11  Adol. 

6  E.  888;  and  other  cases.]  But,  after  the  carrier  or  his  agent  has 
given  one  bill  of  lading  or  receipt  for  the  goods,  he  cannot  give 
another,  unless  the  first  and  all  duplicates  of  the  same  have  been 
returned  to  him." 

The  reason  of  this  rule  is  obvious.     An  assignment  of  a  bill  of 
lading   operates  as  a  transfer  of   a  title   to  the  property  therein 


246  CARRIERS   OF   GOODS. 

described.  As  is  said  in  Meyerstein  v.  Barber,  L.  R.  2  C.  P.  45: 
"While  the  goods  are  afloat  it  is  common  knowledge,  and  I  would 
not  think  of  citing  authorities  to  prove  it,  that  the  bill  of  ladini; 
represents  them  j  and  this  indorsement  and  delivery  of  the  bill  of 
lading,  while  the  ship  is  at  sea,  operates  exactly  the  same  as  the 
delivery  of  the  goods  themselves  to  the  assignee  after  the  ship's 
arrival  would  do."  Now,  it  is  perfectly  manifest  tliat  if  a  carrier 
may  issue  a  second  bill  of  lading  without  requiring  the  return  of 
the  first,  no  reliance  can  be  placed  upon  any  such  an  instrument  by 
those  dealing  with  the  consignor  with  reference  to  the  property. 
And  the  same  consequences  would  ensue  if  he  should  be  permitteil, 
without  the  surrender  of  a  bill  of  lading,  to  ship  the  property  to 
any  one  other  than  that  named  in  the  instrument.  In  view  of  the 
well-known  fact  that  the  livestock,  grain,  and  other  products  of 
this  country  are  paid  for  upon  advancements  made  upon  bills  of 
lading,  just  as  was  done  in  this  case,  the  interests  of  commerce 
seem  to  require  that  the  rule  that  no  alteration  shall  be  made  in 
contracts  of  this  character  without  the  production  of  the  original 
should  be  strictly  enforced.  The  defendant  appears  to  have  had 
due  regard  to  this  rule  when  preparing  its  blank  bills  of  lading. 
The  last  provision  therein  contained  —  to  wit,  "Tiiis  bill  of  lading  to 
be  surrendered  before  property  is  delivered  "  —  was  printed  across 
the  face  of  the  instrument.  It  is  claimed  by  counsel  that  this  part  of 
the  contract  was  no  part  of  the  mutual  obligation,  but  that  it  was  a 
j)rovision  for  the  jirotection  of  the  defendant  which  it  might  well 
waive.  It  is  true,  it  could,  as  it  did  in  this  case,  deliver  the  prop- 
erty without  the  surrender  of  the  bill  of  lading.  But  it  did  so  at 
its  peril.  This  bill  of  lading  was  issued  with  a  full  knowledge  that 
it  was  intended  to  procure  an  advancement  of  money  upon  it;  but 
whether  the  agent  had  such  knowledge  or  not,  third  persons  dealing 
with  Wells  &  Co.  were  justified  in  believing  tliat  their  assignee 
would  receive  the  property  upon  the  surrender  of  the  instrument. 

It  is  claimed,  however,  and  the  court  below  seems  to  have  been 
of  the  opinion,  that  because  a  bill  of  lading  is  not  negotiable  the 
defendant  had  the  riglit  to  ship  tlie  ])roperty  to  Stokes  iV:  Co.  by  the 
direction  of  Zohn,  and  is  not  liable  to  tlie  jilaintiiT  because  it  had 
no  notice  that  the  bill  of  lading  had  been  assigned  to  plaintiff.  It 
is  true  that  a  bill  of  lading  is  not  negotiable.  It  is,  however, 
assignable,  and  the  assignor  may  maintain  an  action  thereon  in  his 
own  name.  It  possesses  attril)ut<'S  not  conmion  to  tlie  ordinar}* 
non-negotiable  instruments  enumerated  in  section  2(tS4  of  the  Code. 
The  instruments  there  enumerated  are  obligations  for  the  j)aynient 
of  money,  or  promises  to  discharge  ol)ligations  or  debts  by  the 
delivf-ry  of  projjorty.  Sufh  obligations  may  be  assigned,  but  they 
ar«*  "  Hiibject  to  any  defence  or  counter-claim  which  tlie  maker  or 
debt'tr  had  against  anv  assiu'uor  tln-reof  belore  notice  of  his 
assignments." 


THE   BILL   OF   LADING.  247 

It  is  claimed  that  the  defendant,  under  this  statute,  may  avail 
itself  of  any  defence  it  could  have  interposed  against  Zohu,  because 
he  was  the  assignor  of  the  plaintiff.  A  bill  of  lading  is  a  different 
character  of  instrument.  It  stands  for  and  re})resents  the  property, 
and  an  assignment  of  it  passes  the  title  to  the  property.  When 
issued,  it  can  only  be  altered  or  changed,  as  we  have  seen,  by  a 
surrender  of  the  original,  and  the  contract  is  that  the  bill  of  lading 
must  be  surrendered  before  the  property  is  delivered. 

This  is  a  plain  contract,  which  persons  dealing  with  the  consignor 
are  justified  in  believing  will  be  performed.  They  have  also  the 
undoubted  right  to  rely  upon  the  rule  that  no  change  can  be  made 
in  the  contract  which  is  issued  and  sent  out  into  the  commercial 
world,  as  every  business  man  knows,  for  the  very  purpose  of  using 
it  as  the  means  by  which  to  procure  money  to  move  the  produce  of 
the  country  to  market.  If  bankers  cannot  rely  upon  bills  of  lading 
as  being  what  they  plainly  import,  and  in  order  to  protect  them- 
selves against  private  oral  agreements  between  the  carrier  and  the 
shipper,  varying  and  contradicting  the  bill  of  lading,  must  give 
notice  to  the  carrier  of  rights  acquired  in  the  property  as  assignees, 
it  would  very  seriously  embarrass  the  business  interests  of  the 
country,  and  would  produce  a  state  of  affairs  that  we  think  is  neither 
warranted  by  sound  legal  principles  nor  by  any  consideration  of 
public  policy. 

We  think  that  the  parol  evidence  should  not  have  been  admitted, 
and  that  the  instructions  above  set  out  are  erroneous. 

Heversed. 


b.  As  a  Receipt. 

O'BEIEN  V.  GILCHRIST. 

34  Maine,  554.     1852. 

On  exceptions  from  the  District  Court,  Rice,  J. 

The  defendant  was  master  of  the  schooner  "Grecian."  She  was 
lying  at  the  port  of  King  William  in  Virginia.  The  plaintiff  shipped 
on  board  of  her  a  quantity  of  oak  timber  to  go  on  freight  to  East 
Thomaston  in  Maine.  The  bill  of  lading,  signed  by  the  defendant, 
contained  the  following  expressions:  — 

"Shipped  in  good  order  and  condition,  by  Seth  O'Brien,  in  and 
upon  the  good  schooner  called  the  'Grecian,'  whereof  Cornelius 
Gilchrist  is  master  for  the  present  voyage  and  now  lying  in  the  port 
of  King  William  and  bound  for  East  Thomaston,  viz. :  — 

"Three  hundred  seventy-eight  pieces  of  white  oak  ship  timber, 
amounting  to  one  hundred  and  thirty-four  tons  and  thirty-two  feet, 


248  CARRIERS   OF   GOODS. 

more  or  less,  and  are  to  be  delivered  in  the  like  good  order  and 
condition,  at  the  said  port  of  East  Thomaston,"  etc. 

The  timber  delivered  at  East  Thomaston  was  but  351  pieces 
amounting  to  one  hundred  and  twenty-three  tons,  making  a  delioit 
from  the  bill  of  lading  of  eleven  tons  and  thirty-two  feet.  This 
controversy  relates  to  that  deficiency. 

The  defendant  at  the  trial  offered  several  witnesses  to  prove  that 
there  were  not  so  many  pieces  nor  so  many  tons  received  on  board  as 
is  described  in  the  bill  of  lading.  The  plaintiff  objected  to  contra- 
dicting the  bill  of  lading  by  parol,  but  the  court  held  that,  so  far  as 
the  bill  of  lading  was  in  the  nature  of  a  receipt,  it  was  very  strong 
prima  facie  evidence  of  the  truth  of  its  recitals,  but  not  conclusive; 
and  it  was  therefore,  as  to  numbers  and  quantity,  liable  to  be  con- 
tradicted and  overcome  by  oral  testimony,  and  that  as  between  the 
parties,  all  relevant  evidence  tending  to  show  that  the  defendant 
was  induced,  by  misrepresentation  or  mutual  mistake,  to  sign  a  bill 
of  lading  reciting  a  larger  quantity  than  had  in  fact  been  delivered 
and  received,  would  be  proper  for  tlie  consideration  of  the  jury. 

The  verdict  was  for  the  defendant,  and  the  i)laintitT  excepted. 

Appleton,  J.  That  a  receipt  may  be  contradicted  by  parol  evi- 
dence has  long  been  considered  well-settled  law.  The  bill  of  lading, 
so  far  as  regards  the  condition  of  the  goods  shipped,  is  jj  rim  a  facif 
evidence  of  a  high  nature,  but  not  conclusive.  Barrett  v.  Kogers,  7 
Mass.  297.  The  master  of  a  vessel  is  not  authorized  to  open  the 
packages  to  ascertain  their  condition.  The  principles  of  public 
policy  and  the  convenience  of  transportation  forbid  that  boxes, 
bales,  etc.,  should  be  opened  and  insjiected  before  receipted  for  by 
carriers.  They  therefore  may  show  tliat  they  were  damaged  before 
coming  into  their  possession.  Gowdy  v.  Lyon,  9  li.  Mun.  113. 
The  same  rule  of  law  has  been  applied  to  the  quantity  of  goods 
therein  stated  as  having  been  received  for  transportation.  In  liates 
V.  Todd,  1  M.  &  R.  lOG,  Tindal,  C.  J.,  said,  that  he  was  of 
opinion  that,  as  between  the  original  parties,  the  bill  of  lading  is 
merely  a  receipt  liable  to  be  opened  by  the  evidence  of  the  real  facts, 
and  left  the  question  for  the  jury  to  determine  what  number  of  bags 
of  coffee  had  been  sliipped.  In  lierkcdy  v.  Watting,  34  E.  C.  L. 
22,  it  was  held,  that  the  (U't'endants  were  not  estopped  l)y  the  bill  of 
lading  to  show  that  goods  i)urporting  to  be,  wore  not  in  fact,  shi]>pe(l. 
In  Dickerson  v.  Seelye,  12  Harb.  102,  Edmonds,  J.,  in  delivering 
the  opinion  of  the  court,  says,  "as  between  tlie  sliipper  of  tlie  goods 
and  the  owner  of  tl»e  vcsscd,  a  bill  of  lading  may  be  exidaiiu'd  so 
far  a«  it  is  a  receipt;  that  is,  as  to  tlie  (piantity  of  goods  shipped 
and  the  like;  but  as  between  the  owner  of  the  vessel  and  an  assignee 
for  a  valuable  consideration  paid  on  the  strength  of  a  l)ill  of  lading, 
it  may  not  Imj  exjjlaincd."  \Vhat  may  be  the  rights  of  an  assignee 
under  such  circumstanceH  it  is  not  necessary  to  consider  or  determine 
here,  as  that  question  does  not  arise  in  the  present  case. 


THE    BILL    OF   LADING.  249 

111  Way  land  v.  Moseley,  5  Ala.  430,  the  court  say,  "that  a  bill 
of  lading  in  its  character  is  twofold,  viz. :  a  receipt  and  a  contract 
to  carry  and  deliver  goods.  So  far  as  it  acknowledges  the  receipt  of 
goods  and  states  their  condition,  etc.,  it  may  be  contradicted,  but  in 
other  respects  it  is  treated  like  other  written  contracts."  In  May  v. 
Babcock,  4  Ohio,  334,  the  language  of  the  court  is,  that  "  a  bill  of 
lading  is  a  contract  including  a  receipt."  The  same  doctrine  in 
New  York  is  likeAvise  fully  affirmed  in  Walfe  v.  Myers,  3  Sand.  7. 
The  best  elementary  writers  also  concur  in  this  view  of  the  law.  1 
Greenl.  Ev.  §  305;  Abbott  on  Shipping,  324.  The  evidence,  so  far 
as  relates  to  this  question,  was  legally  admissible,  and  the  instruc- 
tions of  the  court  in  relation  thereto  were  in  conformity  with  well- 
established  principles. 

The  evidence  offered  by  way  of  giving  a  construction  to  the  mean- 
ing of  the  words  "more  or  less"  in  the  bill  of  lading,  was  most 
clearly  inadmissible.  The  court,  however,  directed  the  jury  entirely 
to  disregard  all  evidence,  which  was  designed  to  control  the  legal 
construction  of  the  instrument,  and  it  is  to  be  presumed  that  the  jury 
in  rendering  their  verdict  followed  the  instructions  of  the  court. 

At  the  same  time,  the  construction  of  these  words,  as  given  in  the 
charge  of  the  judge,  was  most  favorable  to  the  plaintiff. 

Exceptions  overruled.     Judgment  on  the  verdict. 


EELYEA  V.   NEW  HAVEN  EOLLING  MILL  CO. 
42  Conn.  (U.  S.  D.  C.)  579.     1873. 

Libel  for  freight-money;  tried  in  the  United  States  District 
Court  for  the  District  of  Connecticut,  August  Term,  1873.  The 
facts  of  the  case  are  sufficiently  stated  in  the  opinion. 

Shipman,  J.  This  is  a  libel  in  j^nrsonam  in  favor  of  the  owner 
and  master  of  the  sloop  "  Carver  "  to  recover  freight-money  from  the 
respondents.  On  or  about  the  8th  day  of  August,  1872,  Pettee  & 
Mann  engaged  the  libellant  to  transport  in  his  sloop  a  cargo  of  scrap 
iron  from  New  York  to  New  Haven.  The  iron  was  weighed  upon 
the  wharf  at  New  York,  and  delivered  on  board  the  vessel  by  Pettee 
&,  Mann.  The  captain,  on  August  8th,  1872,  signed  three  bills  of 
lading,  whereby  he  acknowledged  to  have  received  on  board  the 
sloop  one  hundred  and  nine  tons  and  a  specified  fraction  of  a  ton, 
and  agreed  to  deliver  the  same  to  the  respondents  at  New  Haven,  or 
to  their  assigns,  he  or  they  paying  freight  at  the  rate  of  $2.25  per 
ton  of  2,240  pounds.  The  captain  demurred  to  signing  the  bills  of 
lading,  as  he  had  not  seen  the  iron  weighed,  but  finally  signed  them 
upon  the  assurance  of  Pettee  &  Mann  that  the  quantity  was  correctly 
stated. 


250  CARRIERS    OF    GOODS. 

On  the  same  day  the  consignors  sent  \>y  mail  to  the  respondents 
one  of  the  tliree  bills  of  lading,  and  a  bill  of  the  iron  at  S(J2.50  per 
ton.     This  letter  was  received  before  the  vessel  arrived. 

The  vessel  and  cargo  reached  New  Haven  about  the  10th  of 
August.  There  was  a  delay  of  three  or  four  daj'S  in  discharging, 
in  consequence  of  the  respondents'  dock  being  preoccupied,  but  the 
vessel  was  discharged  on  the  17th.  On  the  IGth  the  respondents 
paid  Pettee  &  Mann  in  accordance  with  the  quantity  stated  in  the 
invoice  and  the  bill  of  lading.  On  the  17th,  when  the  iron  was 
entirely  discharged,  the  respondents  discovered  a  deficienc}-  of  about 
six  tons,  and  refused  to  pay  for  the  freight.  The  libellant  delivered 
all  the  iron  that  was  put  on  board  his  vessel,  and  wliicli  amounted 
to  one  hundred  and  three  tons.  It  is  fairly  to  be  inferred  that  the 
consignees  would  not  have  paid  Pettee  &  Mann  until  the  weight 
of  the  iron  had  been  ascertained,  had  they  not  relied  upon  the  posi- 
tive statement  of  the  bill  of  lading. 

The  question  of  law  in  the  case  is,  whctlier  the  consignees,  who 
have  advanced  money  on  the  faith  of  a  clean  bill  of  lading  signed  by 
the  master  and  owner  of  a  vessel,  and  have  been  injured  thereby, 
can  recoup,  in  an  action  for  freight-money  brouglit  by  sucli  master, 
so  much  of  their  loss  as  does  not  exceed  the  libellant's  claim  fur 
freight. 

It  is  well  settled  tliat  as  between  the  shipper  and  tlie  sliipowner 
the  receipt  in  the  bill  of  lading  is  open  to  explanation.  But  the 
point  here  is,  whetlier  the  master  and  owner  are  concluded  by  jjosi- 
tive  representations  as  to  third  j)ersons  who  have  relied  upon  such 
statements  and  have  suffered  loss  thereby?  Since  the  case  of 
Lickbarrow  v.  Mason,  2  T.  R.  G3,  it  has  generally  been  considered 
as  settled  law,  that  a  bill  of  lading  is  a  f/uasi  negotiable  instrument, 
and  wlien  goods  are  sold  by  tlie  consignees  "  to  arrive,''  and  tlie  bill 
of  lading  is  indorsed  to  tlie  jjurchaser,  who  receives  the  same  in 
good  faith,  tliat  the  consignor's  right  of  stojjpage  hi  transitu  is  lost. 

The  custom  of  merchants  upon  a  sale  of  goods  wliich  have  not 
arrived  is,  to  dfdiver  tlie  bills  of  lading  to  the  ]jur('iiaser,  which 
pass  from  successive  vendor  to  vendee,  and  thus  liecr)me  a  niuniinent 
of  title  of  great  value.  In  siich  case,  tlie  only  evidence  wliidi  tlir 
purchaser  has  of  the  quantity  of  goods  which  he  has  bought,  may 
l>e  the  statement  of  the  master  in  the  bill  of  lading.  This  dctdara- 
tion  is  oftentimes  the  only  source  of  information  upon  wliich  the 
purrliiuser  can  safidy  rely. 

It  then  becomes  the  duty  of  tlie  master  to  sec  to  it  that  iiuiocent 
purchasers  are  not  deceived  by  his  incorrect  or  uncertain  represen- 
tatiouH.  In  case  purchasers  are  deceived,  a  corrcsjionding  legal 
liability  should  \»'  im]ir)sed  ujion  him  to  make  good  the  loss  which 
ho  has  caused.  H:irl  the  N«*w  Haven  Rolling  Mill  Company  sold 
the  iron  while  in  transit,  and  had  the  purchaser,  relying  u])on  the 
representations  of  the  bill  of  la<ling,  paid  for  the  full  amount  therein 


THE    BILL   OF   LADING.  251 

stated,  there  can  be  little  doubt  that  the  master,  being  also  the 
owner,  would  have  been  considered  bound  by  his  statements,  at  least 
to  the  extent  of  his  freight-money. 

I  see  no  reason  why  his  liability  should  be  diminished  when  the 
person  who  is  deceived  is  the  consignee  named  in  the  bill  of  lading. 
If  the  consignee  has  nob  been  misled,  and  has  not  suffered  loss,  in 
consequence  of  the  bill  of  lading,  he  has  no  cause  of  complaint. 
But  if  it  is  found  that  a  loss  has  been  suffered,  and  that  such  loss 
happened  through  a  reliance  upon  an  erroneous  bill  of  lading,  there 
is  no  just  reason  why  the  person  whose  negligence  has  immediately 
caused  the  injury  should  not  also  bear  the  loss. 

To  this  effect  is  the  decision  of  Judge  Nelson,  in  Bradstreet  v. 
Heran,  2  Blatchf.  C.  C.  R.  116.  This  was  a  libel  in  'personam  by 
the  master  to  recover  freight  on  cotton  shipped  from  New  Orleans 
to  New  York  and  consigned  to  the  respondents.  The  court  say: 
"The  consignees  made  large  advances  upon  the  cotton  on  the  faith 
of  the  representation  in  the  bill  of  lading  that  it  was  shipped  in 
good  order.  They  are  justified  in  doing  so,  and  their  security 
should  not  be  lessened  or  impaired  by  permitting  the  master  to 
contradict  his  own  representation  in  that  instrument.  It  might  be 
otherwise  if  the  question  arose  between  the  master  and  the  owner  of 
the  cotton.  The  question  of  damage  might  in  that  case  be  well 
limited  to  that  accruing  in  the  course  of  the  voyage,  notwithstand- 
ing the  bill  of  lading.  But  the  respondents  stand  in  the  light  of 
honafide  purchasers,  who  became  such  on  the  faith  of  the  represen- 
tation of  the  master." 

In  case  of  Sears  v.  Wingate,  3  Allen,  103,  the  court  hold  that  the 
master  and  owner  is  bound  by  the  representations  in  the  bill  of 
lading,  when  the  consignee  is  deceived  thereby,  provided  the  state- 
ments are  those  which  the  master  knew  or  ought  to  have  known 
were  erroneous,  and  the  incorrectness  of  which  he  had  the  means  of 
discovering. 

Here  the  cargo  was  weighed  upon  the  dock  at  New  York.  It  is 
not  probable  that  the  master,  unless  exceedingly  diligent,  could 
have  verified  the  accuracy  of  the  weights,  or  have  ascertained  the 
truth  or  incorrectness  of  the  representations  made  to  him  by  the 
consignors.  But  in  my  opinion  it  was  his  duty  either  to  have 
ascertained  the  true  weight,  or  to  have  refused  to  sign  a  clean  bill. 
The  master,  when  he  ignorantly  signs  a  bill  of  lading,  whereby  he 
undertakes  to  deliver  a  specified  quantity,  is  always  in  danger  of 
misleading  a  third  person.  It  is  incumbent  upon  him  to  avoid  that 
danger,  by  refusing  to  sign  a  bill  unless  he  is  satisfied  of  the 
accuracy  of  its  contents. 

It  is  claimed  by  the  libellant  that  the  hundred  and  three  tons 
were  accepted,  and  that  the  freight-money  is  therefore  to  be  paid. 
It  is  true  that  there  was  an  acceptance,  and  that  the  respondents  are 
liable  for  the  freight-money.     But  they  have  nevertheless  a  right  to 


252  C-UiRIERS   OF   GOODS. 

recoup  against  this  claim  for  freight,  the  damage  which  they  have 
sustained  in  consequence  of  the  fault  of  the  master  in  the  same 
transaction  which  is  the  subject  of  the  suit;  but  such  recoupment 
cannot  be  to  an  extent  beyond  the  amount  claimed  for  freight. 

The  respondents  can  prosecute  this  claim  for  damage,  either  by 
an  independent  suit  or  libel,  or  the}'  can  by  recoupment,  "seek  to 
diminish  or  extinguish  the  libellant's  just  claim."  Kennedy  v. 
Dodge,  1  Benedict,  315;  Nichols  v.  Tremlett,  1  Sprague's  Decis. 
367. 

The  lil)ellant  was  also  entitled  to  a  small  sum  for  demurrage,  but 
as  the  price  of  the  six  tons  of  iron  was  greater  than  the  amount  of 
the  freight-money  and  demurrage,  the  libel  must  be  dismissed. 


POLLARD   V.   VIXTON. 

105  U.  S.  7.     ISsl. 

Ekuou  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Kentucky. 

The  facts  are  stated  in  the  opinion  of  the  court. 

Mr.  Justice  Millek.  The  defendant  in  error,  who  was  also 
defendant  below,  was  the  owner  of  a  steamboat  running  between 
the  cities  of  Memphis,  on  the  Mississippi  Kiver,  and  Cincinnati,  on 
the  Ohio  River,  and  is  sued  on  a  bill  of  lading  for  the  non-delivery 
at  Cincinnati  of  one  hundred  and  fifty  bales  of  cotton,  according  to 
its  terms.  The  bill  of  lading  was  in  the  usual  form,  and  signed 
by  E.  D.  Cobb  &  Co.,  wlio  were  the  general  agents  of  Vinton  for 
8hij)ping  purposes  at  Memphis,  and  was  delivered  to  Dickinson, 
Williams  &  Co.  at  that  place.  They  immediately  drew  a  draft  on 
the  ])laintifFs  in  New  York,  payable  at  sight,  for  .Sr),9<l<),  to  which 
they  attaclied  the  bill  of  lading,  which  draft  was  duly  accejited  and 
paid.  No  cotton  was  shipped  on  the  steamboat,  or  delivered  at  its 
wharf,  or  to  its  agent  for  shipment,  as  stated  in  the  bill  of  lading, 
the  statement  to  that  effect  being  untrue. 

These  facts  being  un(lisi)uted,  as  tliey  are  found  in  tlio  bill  of 
exceptions,  the  court  instructed  the  jury  to  find  a  verdiet  for  the 
defendant,  which  was  done,  and  judgment  rendered  accordingly. 
This  instruction  is  the  error  comitlained  of  Ity  the  plaintiffs,  who 
sued  out  the  present  writ. 

A  bill  of  lading  is  an  instrument  well  known  in  commercial 
tran.sactions,  and  its  cliaracter  and  elTeet  have  been  delincd  by  judi- 
cial decisions.  In  the  hand.s  of  the  holder  it  is  evidence  of  owner- 
ship, special  or  general,  of  the  pro])erty  mentioned  in  it,  an«l  of  the 
right  to  receive  8ai<l  jjroperty  at  the  place  of  delivery.     Notwith- 


THE   BILL   OF  LADING.  253 

standing  it  is  designed  to  pass  from  hand  to  hand,  with  or  without 
indorsement,  and  it  is  efficacious  for  its  ordinary  purposes  in  the 
hands  of  the  holder,  it  is  not  a  negotiable  instrument  or  obligation 
in  a  sense  that  a  bill  of  exchange  or  a  promissory  note  is.  Its 
transfer  does  not  preclude,  as  in  those  eases,  all  inquiry  into  the 
transaction  in  which  it  originated,  because  it  has  come  into  hands 
of  persons  who  have  innocently  paid  value  for  it.  The  doctrine  of 
bona  fide  purchasers  only  applies  to  it  in  a  limited  sense. 

It  is  an  instrument  of  a  twofold  character.  It  is  at  once  a  receipt 
and  a  contract.  In  the  former  character  it  is  an  acknowledgment 
of  the  receipt  of  property  on  board  his  vessel  by  the  owner  of  the 
vessel.  In  the  latter  it  is  a  contract  to  carry  safely  and  deliver. 
The  receipt  of  goods  lies  at  the  foundation  of  the  contract  to  carry 
and  deliver.  If  no  goods  are  actually  received,  there  can  be  no 
valid  contract  to  carry  or  to  deliver. 

To  these  elementary  truths  the  reply  is  that  the  agent  of  defendant 
has  acknowledged  in  writing  the  receipt  of  the  goods,  and  promised 
for  him  that  they  should  be  safely  delivered,  and  that  the  principal 
cannot  repudiate  the  act  of  his  agent  in  this  matter,  because  it  was 
within  the  scope  of  his  employment. 

It  will  probably  be  conceded  that  the  effect  of  the  bill  of  lading 
and  its  binding  force  on  the  defendant  is  no  stronger  than  if  signed 
by  himself  as  master  of  his  own  vessel.  In  such  case  we  think  the 
proposition  cannot  be  successfully  disputed  that  the  person  to  whom 
such  a  bill  of  lading  was  first  delivered  cannot  hold  the  signer 
responsible  for  goods  not  received  by  the  carrier. 

Counsel  for  plaintiffs,  however,  say  that  in  the  hands  of  subse- 
quent holders  of  such  a  bill  of  lading,  who  have  paid  value  for  it  in 
good  faith,  the  owner  of  the  vessel  is  estopped  by  the  policy  of  the 
law  from  denying  what  he  has  signed  his  name  to  and  set  afloat  in 
the  public  market.  However  this  may  be,  the  plaintiffs'  counsel 
rest  their  case  on  the  doctrine  of  agency,- holding  that  defendant  is 
absolutely  responsible  for  the  false  representations  of  his  agent  in 
the  bill  of  lading. 

But  if  we  can  suppose  there  was  testimony  from  which  the  jury 
might  have  inferred  either  mistake  or  bad  faith  on  the  part  of  Cobb 
&  Co.,  we  are  of  opinion  that  Vinton,  the  shipowner,  is  not  liable 
for  the  false  statement  in  the  bill  of  lading,  because  the  transaction 
was  not  within  the  scope  of  their  authority. 

If  we  look  to  the  evidence  of  the  extent  of  their  authority,  as 
found  in  the  bill  of  exceptions,   it  is  this  short  sentence:  — 

"During  the  month  of  December,  1873"  (the  date  of  the  bill  of 
lading),  "the  firm  of  E.  D.  Cobb  &  Co.,  of  Memphis,  Tennessee, 
were  authorized  agents  of  the  defendant  at  Memphis,  rvith  power  to 
solicit  freights  and  to  execute  and  deliver  to  shijjpers  bills  of  lading 
for  freight  shipped  on  defendant's  steamboat,  '  Ben  FranMin.'  " 

This  authority  to  execute  and  deliver  bills  of  lading  has  two  limi- 


254  CAKlilEKS    OF   GOODS. 

tatious;  namely,  they  coulJ  only  be  delivered  to  shippers,  and  thej' 
could  only  be  delivered  for  freight  shipped  on  the  steamboat. 

Before  the  power  to  make  and  deliver  a  bill  of  lading  could  arise, 
some  person  must  have  shipped  goods  on  the  vessel.  Only  then 
could  there  be  a  shipper,  and  only  then  could  there  be  goods  shipped. 
lu  saying  this,  we  do  not  mean  that  the  goods  must  have  been 
actually  placed  on  the  deck  of  the  vessel.  If  they  came  within  the 
control  and  custody  of  the  officers  of  the  boat  for  the  purpose  of 
shipment,  the  contract  of  carriage  had  commenced,  and  the  evidence 
of  it  in  the  form  of  a  bill  of  lading  would  be  binding.  But  without 
such  a  delivery  there  was  no  contract  of  carrying,  and  the  agents  of 
defendant  had  no  authority  to  make  one. 

They  had  no  authority  to  sell  cotton  and  contract  for  delivery. 
They  had  no  authority  to  sell  bills  of  lading.  They  had  no  power 
to  execute  these  instruments  and  go  out  and  sell  tliem  to  purchasers. 
No  man  had  a  right  to  buy  such  a  bill  of  lading  of  them  who  had 
not  delivered  them  the  goods  to  be  shipped. 

Such  is  not  only  the  necessary  inference  from  the  definition  of 
the  authority  under  which  they  acted,  as  found  in  the  bill  of  excep- 
tions, but  such  would  be  the  legal  implication  if  their  relation  to 
defendant  had  been  stated  in  more  general  terms.  The  result  would 
have  been  the  same  if  it  had  been  merely  stated  that  they  were  the 
shipping  agents  of  the  owner  of  the  vessel  at  that  point. 

It  appears  to  us  that  tliis  proposition  was  distinctly  adjudged  by 
this  court  in  the  case  of  Schooner  Freeman  v.  Buckingham.  18 
How.  182. 

In  that  case  the  schooner  was  libelled  in  admiralty  for  failing  to 
deliver  flour  for  which  the  master  had  given  two  bills  of  lading, 
certifying  that  it  had  been  delivered  on  board  the  vessel  at  Cleve- 
land, to  be  carried  to  l>utlalo  and  safely  delivered.  The  lil)ellants, 
who  reside  in  the  city  of  New  York,  had  advanced  money  to  the 
consignee  on  these  bills  of  lading,  which  were  delivered  to  them. 
It  turned  out  that  no  such  flour  had  ever  been  shipped,  and  that  the 
master  had  been  induced,  by  the  fraudulent  orders  of  a  porsf)n  in 
control  of  the  vessel  at  the  time,  to  make  and  deliver  the  bills  of 
lading  to  him,  and  that  he  had  sold  the  drafts  on  which  libellants 
had  paid  the  money  and  received  the  bills  of  lading  in  good  faith. 

A  question  arose  liow  far  the  claimant,  who  was  the  real  owner, 
or  general  owner,  of  the  vesscd  could  be  bound  by  the  acts  of  tlie 
ma.ster  appointed  by  one  to  whom  he  had  confided  the  control  of  the 
vessel;  and  the  court  held  that,  having  consented  to  this  delivery  of 
the  vessel,  he  was  bound  by  all  the  acts  by  whicli  a  master  could 
lawfully  lund  a  vessel  or  its  owner. 

The  court,  in  further  discussing  the  question,  says:  ''Even  if  tlie 
nu-uster  had  been  appointed  by  the  claimant,  a  wilful  fraud  com- 
mitted by  liim  on  a  third  person  by  signing  false  bills  of  lading 
would  not  be  within  his  agency.     If  tlic  sii^Mn-r  of  a  bill  of  ladini? 


THE   BILL   OF   LADING.  255 

was  not  the  master  of  the  vessel,  no  one  would  suppose  the  vessel 
bound;  and  the  reason  is,  because  the  bill  is  signed  by  one  not  in 
privity  with  the  owner.  But  the  same  reason  applies  to  a  signature 
made  by  a  master  out  of  the  course  of  his  employment.  The  taker 
assumes  the  risk,  not  only  of  the  genuineness  of  the  signature ,  and 
of  the  fact  that  the  signer  was  master  of  the  vessel,  but  also  of  the 
apparent  authority  of  the  master  to  issue  the  bill  of  lading.  We 
say  the  apparent  authority,  because  any  secret  instructions  by  the 
owner,  inconsistent  with  the  authority  with  which  the  master 
appears  to  be  clothed,  would  not  affect  third  persons.  But  the 
master  of  a  vessel  has  no  more  apparent  authority  to  sign  bills  of 
lading  than  he  has  to  sign  bills  of  sale  of  the  ship.  He  has  an 
apparent  authority,  if  the  ship  be  a  general  one,  to  sign  bills  of 
lading  for  cargo  actually  shipped;  and  he  has  also  authority  to  sign 
a  bill  of  sale  of  the  ship  when,  in  case  of  disaster,  his  power  of  sale 
arises.  But  the  authority  in  each  case  arises  out  of  and  depends 
upon  a  particular  state  of  facts.  It  is  not  an  unlimited  authority 
in  one  case  more  than  in  the  other;  and  his  act  in  either  case  does 
not  bind  the  owner  even  in  favor  of  an  innocent  purchaser,  if  the 
facts  on  which  his  power  depended  did  not  exist;  and  it  is  incum- 
bent upon  those  who  are  about  to  change  their  condition  upon  the 
faith  of  his  authority,  to  ascertain  the  existence  of  all  the  facts  upon 
which  his  authority  depends." 

The  court  cites  as  settling  the  law  in  this  way  in  England  the 
cases  of  Grant  v.  Norway,  10  C.  B.  665;  Coleman  v.  Riches,  16  id. 
104;  Hubbersty  v.  Ward,  8  Exch.  Rep.  330;  and  Walter  v.  Brewer, 
11  Mass.  99.  See  also  McLean  &  Hope  v,  Fleming,  Law  Rep.  2  H. 
of  L.  Sc.  128;  Maclachlan's  Law  of  Merchant  Shipping,  368,  369. 

It  seems  clear  that  the  authority  of  E.  D.  Cobb  &  Co.,  as  shipping 
agents,  cannot  be  greater  than  that  of  the  master  of  a  vessel  trans- 
acting business  by  his  ship  in  all  the  ports  of  the  world. 

And  we  are  unable  to  see  why  this  case  is  not  conclusive  of  the 
one  before  us,  unless  we  are  prepared  to  overrule  it  squarely.  The 
very  questions  of  the  power  of  the  agent  to  bind  the  owner  by  a  bill 
of  lading  for  goods  never  received,  and  of  the  effect  of  such  a  bill  of 
lading  as  to  innocent  purchasers  without  notice,  were  discussed  and 
were  properly  in  the  case,  and  were  decided  adversely  to  the  prin- 
ciples on  which  plaintiffs'  counsel  insist  in  this  case.  Numerous 
other  cases  are  cited  in  the  brief  of  counsel  in  support  of  these 
views,  but  we  deem  it  unnecessary  to  give  them  more  special  notice. 

The  case  of  New  York  &  New  Haven  Railroad  Co.  v.  Schuyler, 
34  N.  Y.  30,  is  much  relied  on  by  counsel  as  opposed  to  this 
principle. 

Whatever  may  be  the  true  rule  which  characterizes  actions  of 
officers  of  a  corporation  who  are  placed  in  control  as  the  governing 
force  of  the  corporation,  which  actions  are  at  once  a  fraud  on  the 
corporation   and  the  parties  with  whom  they  deal,   and   how  far 


256  CARRIERS   OF   GOODS. 

courts  may  jet  decide  to  hold  the  corporations  liable  for  such  exer- 
cise of  power  by  their  officers,  they  can  have  no  controlling  influence 
over  cases  like  the  present.  In  the  one  before  us  it  is  a  question  of 
pure  agency,  and  depends  solely  on  the  power  confided  to  the  agent. 

In  the  other  case  tlie  officer  is  the  corporafion  for  many  purposes. 
Certainly  a  corporation  can  be  charged  with  no  intelligent  action, 
or  with  entertaining  any  purpose,  or  committing  any  fraud,  except 
as  this  intelligence,  this  purpose,  this  fraud,  is  evidenced  by  the 
actions  of  its  officers.  And  while  it  may  be  conceded  that  for  many 
purposes  they  are  agents,  and  are  to  be  treated  as  the  agents  of  the 
corporation  or  of  the  corporators,  it  is  also  true  that  for  some  pur- 
poses they  are  the  corporation,  and  their  acts  as  such  officers  are 
its  acts. 

We  do  not  think  that  case  presents  a  rule  for  this  case. 

Judgment  affirmed. 


SIOUX  CITY  AND  PACIFIC  RAILEOAD  COMPANY, 
Plaintiff  ix  Ekuor,  v.  FIRST  NATIONAL  BANK  OF 
FREMONT,    Defexdaxt   in   Error. 

10  Neb.  556.     1.^80. 

Maxwell,  Ch.  J.         .......         . 

It  will  be  seen  that  the  object  of  the  action  is  to  hold  the  railroad 
company  liable  on  two  bills  of  lading  executed  by  its  station  agent 
to  one  Watkins,  one  of  said  bills  being  dated  Nov.  13th,  1877,  for 
two  f-ars  of  wheat,  and  the  other  dated  Nov.  15th,  1877,  for  three  cars 
of  wheat,  which  bills  of  lading  were  transferred  to  the  l»ank,  the 
bank  advancing  SI,. 500  on  them,  relying  on  the  statements  therein 
contained  that  Watkins  had  shipped  five  full  cars  of  wheat,  when  in 
fact  the  cars  mentioned  in  the  first  receipt  contained  about  one-half 
a  car-load  of  wlieat  and  about  one-half  a  car-load  of  barley,  and  tlie 
three  cars  mentioned  in  the  second  receipt  were  never  in  fact  sliii)i)ed, 
and  no  wheat  was  in  fact  received  by  the  railroad  company  at  the 
time  the  receipt  was  given.  Is  the  company  liable  under  such  cir- 
cumstances upon  the  bills  of  lading?  In  the  case  of  Grant  v.  Nor- 
way, 2  Eng.  Law  and  V.(\.  \VM,  it  was  held  that  the  master  of  a  ship 
has  no  general  authority  to  sign  a  bill  of  hiding  for  goods  which  are 
not  put  on  board  the  vessel;  and  consequently  the  owners  of  the  ship 
are  not  responsilde  to  parties  taking  a  bill  of  lading  which  has  been 
signed  by  tlie  master  witliout  receiving  the  goods  on  board.  This 
case  was  decided  in  the  common  jdeas  in  IHol.  No  authorities 
are  cited  by  the  court  to  sustain  its  position,  the  court  saying: 
"There  is  but  little  to  be  found  in  the  books  on  this  subject;  it  was 
discussed  in  the  case  of  Berkley?'.  Watling,  7  Atl.  and  El.  20;  but 


THE   BILL   OF  LADING.  257 

that  case  was  decided  on  another  point,  although  Littledale,  J.,  said 
in  his  opinion  the  bill  of  lading  was  not  conclusive  under  similar 
circumstances  on  the  shipowner."     This  decision  was  followed  in 
Hubbersty  v.  Ward,  18  id.  551,  in  the  Court  of  Exchequer,  Pollock, 
C.   B.,    placing  the  decision  upon  a  lack  of  power  in  the  master. 
See   also  Coleman   v.   Riches,   29  id.   329.      These   decisions  were 
followed  by  the  Supreme  Court  of  the  United  States  in  the  case  of 
the  Schooner  Freeman  v.  Buckingham,  18  How.  182.     In  that  case 
the  claimant,  being  the  sole  owner  of  the  schooner  named,  contracted 
with  one  John  Holmes  to  sell  it  to  him  for  the  sum  of  $10,000, 
payable   by  instalments  at   different  dates.     By  the   terms   of  the 
contract  John  Holmes  was  to  take  possession  of  the  vessel,  and  if 
he  should  make  all  the  agreed  payments,  the  claimant  was  to  con- 
vey to  him.     The  vessel  was  delivered  to  Holmes  under  this  con- 
tract, and  he  had  paid  one  instalment,  the  only  one  which  had  become 
due.     Holmes  permitted   his  son,   Sylvanus  Holmes,   to  have   the 
entire   control  and  management  of  the  vessel  and  to  appoint   the 
master.     Sylvanus  Holmes  transacted  business  under  the  style  of  S. 
Holmes  &  Co.,  and  the  flour  mentioned  in  the  bills  of  lading  as  hav- 
ing been  shipped  by  him  was  never  in  fact  shipped,  the  master 
having  been  induced  to  sign  the  bills  of  lading  by  fraud  and  impo- 
sition.    The  question  before  the  court  is  thus  stated  in  the  opinion: 
"But  the  real  question  is,  whether  in  favor  of  a  bona  fide  holder  of 
such  bills  of  lading  procured  from  the  master  by  the  fraud  of  an 
owTiQv  jjro  hac  vice,  the  general  owner  is  estopped  to  show  the  truth, 
as  undoubtedly  the  special  owner  would  be."     It  was  held  that  the 
maritime  law  gave  no  lien  upon  the  vessel,  and  that  the  general 
owner  thereof  was  not  estopped  from  alleging  and  proving  the  facts. 
In  the  case  of  Dean  v.  King,  22  Ohio  State,  118,  it  was  held  in  an 
action  by  the  shipper  against  the  owner  of  a  steamboat  engaged  in 
the  business  of  common  carriers,  to  recover  for  goods  as  per  bill  of 
lading,  that  the  defendants  are  liable  only  for  so  much  of  the  goods 
as  was  actually  received  on  the  boat  or  delivered  to  some  one  author- 
ized to  receive  freight  on  her  account.     This  seems  to  have  been 
an  action  between  the  original  parties.     In  Dickerson  v.  Seelye,  12 
Barb,  99,  the  court  held  that  as  between  the  shipper  of  the  goods 
and  the  owner  of  the  vessel  a  bill  of  lading  may  be  explained  as  to 
the  quantity  and  condition  of  the  goods,  yet  it  cannot  be  so  explained 
as  between  the  owner  of  the  vessel  and  a  consignee  or  assignee  of 
the  bill  of  lading  who  has  in  good  faith  advanced  money  on  the 
strength  of  it,  and  has  thus  been  induced  by  the  master's  signing 
the  bill  to  do  an  act  changing  the  situation  of  the  parties.     In  such 
case  the  bill  of  lading  is   conclusive  on  the  owner  in  respect  to 
the  quantity  of  goods.     The  court  say:  "As  between  the  owner  of 
the  vessel  and  an  assignee  for  a  valuable  consideration  paid  on  the 
strength  of  the  bill  of  lading,   it  may  not  be  explained;    Portland 
Bank  v.  Stubbs,  G  Mass.  422;  Abbott  on   Shipping,  323-4;  Brad- 

17 


258  CAKlilEKS    UF    GOODS. 

Street  v.  Lees,  M.  S.,  U.  S.  District  Court.  In  such  case  the 
sujierior  equity  is  with  the  bona  Jide  assignee  who  has  parted  with 
his  money  on  the  strength  of  the  bill  of  lading." 

In  the  case  of  Armour  v.  ^Michigan  C.  R.  K.  Co.,  65  X.  Y.  Ill, 
the  defendant's  agent,  having  authority  to  issue  bills  of  lading,  upon 
delivery  to  him  by  M.  of  a  forged  warehouse  receipt,  issued  to  jNI. 
two  bills  of  lading,  each  stating  the  receipt  of  a  quantity  of  lard 
consigned  to  plaintiffs  at  New  York,  and  to  be  transported  and 
delivered  to  them.  M.  drew  sight  drafts  on  the  plaintiffs,  to  which 
he  attacheel  the  bills  of  lading;  these  were  delivered  to  a  bank  and 
were  forwarded  to  New  York,  and  the  drafts  were  paid  by  i)laintitf 
upon  the  faith  and  credit  of  the  bills  of  lading.  It  was  held  that 
the  defendant  was  bound  by  the  acts  of  its  agent,  the  same  being 
within  the  apparent  scope  of  his  authority,  and  was  estopped  from 
denying  the  receipt  of  the  lard.  In  the  case  of  the  Savings  liank  v. 
A.  T.  &  S.  F.  K.  K.  Co.,  20  Kansas,  519,  the  court  held  that  where 
the  agent  of  a  railroad  company  has  authority  to  receive  grain  for 
shipment  over  its  road,  and  issues  in  the  name  of  the  corporation  a 
bill  of  lading  for  each  consignment  received,  and  issues  two  original 
bills  of  lading  for  a  single  consignment,  the  two  bills  of  lading 
having  been  assigned  to  the  bank,  which  advanced  money  thereon 
in  good  faith,  and  the  shipper  being  insolvent  and  having  absconded, 
that  the  railroad  company  was  estopped  by  its  statement  and  promise 
in  the  bill  of  lading  to  deny  that  it  has  received  tlie  grain  mentioned 
therein.  The  court  say:  "The  custom  of  grain-dealers  is  to  buy  of 
the  producer  his  wheat,  corn,  barley,  etc.,  then  deliver  the  same  to 
the  railroad  company  for  shipment  to  market.  The  railroad  com- 
pany issues  to  tlie  shipper  its  bill  of  lading.  The  shipper  takes  his 
bill  of  lading  to  a  bank,  draws  a  draft  upon  his  commission  mer- 
chant or  consignee  against  the  shipment,  and  attaches  his  bill  of 
lading  to  the  draft.  Upon  the  faith  of  the  bill  of  lading  and  with- 
out further  inquiry  the  bank  cashes  the  draft,  and  the  money  is  thus 
obtained  to  pay  for  tlie  grain  purchased,  or  to  rej)urchase  other  sliip- 
ments.  In  this  way  the  dealer  realizes  at  once  tlie  greater  vaUu^  of 
liis  consignments,  and  need  not  wait  for  the  returns  of  the  sale  of 
his  grain  to  obtain  money  to  make  other  purchases.  In  this  way 
the  dealer  with  a  small  caj)ital  may  buy  and  sliip  extensively;  and 
while  having  a  capital  of  a  U'W  liundred  dolhus  only,  may  l)uy  for 
cash  and  ship  grain  valued  at  many  thousands.  This  mode  of  trans- 
acting business  is  greatly  advantageous  both  to  the  shipper  and  the 
producer.  It  gives  the  8hij)per  who  is  prudent  and  posted  as  to  the 
njarkets  almost  unlimited  opportunities  for  the  })un'hase  and  ship- 
ment of  grain,  and  furnishes  a  casli  market  for  the  produ(!er  at  his 
own  door.  It  enalde.s  the  capitalist  atid  banker  to  obtain  fair  rates 
of  interest  for  tlie  money  he  has  to  loan,  and  insures  him,  in  tlie 
w.iy  of  bills  of  lading,  excellent  security.  It  also  furnishes  addi- 
tional business  to  railroad  companies,  as  it  facilitates  and  increases 


THE   BILL   OF   LADING.  259 

shipments  to  the  markets.  A  mode  of  doing  business  so  beneficial 
to  so  many  classes  ought  to  receive  the  favoring  recognition  of  the 
courts  to  aid  its  continuance."  The  question  whether  or  not  bills 
of  lading  are  negotiable  does  not  enter  into  the  case.  All  the  testi- 
mony shows  that  the  bills  of  lading  in  controversy  were  issued  by 
an  authorized  agent  of  the  railroad  company,  and  that  he  not  only 
had  authority  to  issue  such  bills,  but  it  was  one  of  the  duties  imposed 
upon  him.  As  against  an  innocent  purchaser  of  the  bills  it  will  not 
do  to  say  that  the  agent  had  authority  to  issue  bills  of  lading  duly 
signed,  only  in  cases  where  shipments  were  made,  and  no  authority 
Avhere  shipments  were  not  made.  The  company  itself  has  invested 
its  own  agent  with  the  authority  to  issue  bills  of  lading,  and  when 
duly  issued  they  are  not  the  bills  of  the  agent,  but  of  the  railroad 
company.  The  representations,  therefore,  thus  made  in  the  bills 
that  the  company  has  received  a  certain  quantity  of  grain  for  ship- 
ment, is  a  representation  to  any  one  who,  in  good  faith  relying 
thereon,  sees  fit  to  make  advances  on  the  same.  If  these  repre- 
sentations are  false,  who  should  bear  the  loss?  The  party  who 
appointed,  placed  confidence  in,  and  gave  authority  to  make  the 
bills,  or  the  one  that  in  good  faith,  relying  thereon,  purchased  or 
advanced  money  on  the  same?  In  Lickbarrow  v.  Mason,  2  T.  K. 
63,  1  Smith's  Leading  Cases,  6  Am.  ed.,  1044,  Ashhurst,  J.,  says: 
"We  may  lay  it  down  as  a  broad,  general  principle,  that  Avhenever 
one  of  two  innocent  persons  must  suffer  by  the  acts  of  a  third,  he 
who  has  enabled  said  third  person  to  occasion  the  loss  must  sustain 
it." 

This  case  presents  every  element  necessary  to  constitute  an 
estoppel  in  pais,  a  representation  made  with  full  knowledge  that  it 
might  be  acted  upon,  and  subsequent  action  in  reliance  thereon,  by 
which  the  defendants  in  error  would  lose  the  amount  advanced  if 
the  representation  is  not  made  good.  This  principle  was  entirely 
overlooked  in  Grant  v.  I^orway,  and  the  cases  following  it.  The 
defendant  in  the  court  below  is  therefore  liable  to  the  bank  to  the 
extent  of  the  amount  advanced  on  faith  of  these  bills,  not  exceeding 
the  value  of  the  grain  certified  to  as  having  been  shipped.  Objec- 
tions are  made  to  the  proof  of  the  price  of  wheat  at  Scribner  at  the 
time  stated  in  the  bills,  to  proof  in  reference  to  the  grade  of  wheat 
shipped  from  that  place,  and  to  the  weight  of  an  ordinary  car-load, 
but  as  the  verdict  is  for  several  hundred  dollars  less  than  the 
amount  advanced  by  the  bank  on  the  bills  of  lading  in  question,  and 
much  less  than  it  should  have  recovered,  it  is  unnecessary  to  con- 
sider them.  There  is  no  error  in  the  record  of  which  the  plaintiff 
in  error  can  complain,  and  the  judgment  must  be  affirmed. 

Judgment  affirmed. 


2G0  CARRIERS   OF  GOODS. 

7.  DELIVERY   BY   CARRIER. 

A.    To  TERMIXATE  ExCEPTIOXAL  LIABILITY. 

HYDE   V.   NAVIGATION   COMPANY. 
King's  Bench.     5  Term  R.  389.     1793. 

This  was  an  action  on  the  case  against  the  defendants  as  common 
carriers.  The  declaration  stated  that  the  defendants  were  common 
carriers  of  goods  for  hire  from  Gainsborough,  in  the  county  of 
Lincoln,  to  Manchester,  in  the  county  of  Lancaster.  That  the  plain- 
tiffs on  the  2Sth  September,  1789,  delivered  the  defendants  eighteen 
bags  of  cotton,  to  be  safely  carried  by  the  defendants  from  Gains- 
borough to  Manchester,  and  there  to  be  delivered  to  the  plaintiffs, 
etc.,  and  that  the  defendants  undertook  to  carry  and  convey,  etc., 
and  there  deliver  them,  which  they  neglected,  etc.  The  second 
count  was  upon  a  delivery  of  fourteen  other  bags  of  cotton,  to  be 
carried  by  the  defendants  from  Bromley  Common,  in  the  county  of 
Stafford,  to  Manchester,  and  there  to  be  delivered  to  the  plaintiffs; 
that  the  defendants  undertook,  etc.,  and  that  the  goods  were  lost 
through  their  negligence. 

It  api)eared  at  the  trial  that  the  goods  were  put  on  board  the 
defendant's  barges  at  the  respective  places  mentioned  in  the  decla- 
ration, and  conveyed  therein  along  the  defendant's  navigation  and 
the  Duke  of  Bridge  water's  canal  to  Manchester,  where  they  were 
landed  upon  the  quay,  and  lodged  there  in  the  Duke  of  Bridgewater's 
warehouse,  in  wliich  place  they  were  consumed  by  an  accidental 
fire  the  same  night.  In  the  bills  made  out  by  the  defendants,  there 
were  charges  of  so  much  for  tonnage  on  the  river  Trent,  so  m\ioh 
for  tonnage  on  tlie  Tn-nt  and  Mer.sey  Navigation,  so  much  for  tlie 
Duke  of  Bridgewater's  canal,  so  much  for  wareliouse  room  for  the 
Duke  of  Bridgewater;  besides  which,  in  tlie  bill  for  the  fourteen 
bag.s  was  a  charge  for  cartage,  wliich  was  intended  for  the  cartage 
from  the  Duke  of  Bridgewater's  warehouse  to  the  ])laintiff's  own 
wareliouse  in  Manchester,  and  which  was  p:iid  by  the  plaintilTs  when 
the  goods  were  put  on  board  the  defendant's  barges;  but  the  charge 
for  warehouse  room  was  merely  received  by  the  defendants  as  agents 
to  the  duke,  and  they  had  no  share  of  the  })rofit.  It  appeared  also 
to  ha  the  practice  of  many  jicrsons  in  Manchester,  for  whom  goods 
were  lirought  by  the  defendants,  to  send  their  own  carts  for  tlie 
goods  from  the  quay  or  warehouse,  but  the  usage  had  uniformly 
been  for  the  cotton  merchants  to  have  their  goods  conveyed  to  their 
own  warehouse  in  carts  furnished  by  the  def<'ndants.  Formerly  the 
defendants   employed   their   own   rarts    for  this    jiurpose.   Init    had 


DELIVERY   BY   CAKRIER.  261. 

latterly  given  up  this  business,  together  with  the  profits  derived 
from  it,  to  a  person  named  Hibbert,  who  was  their  book-keeper;  and 
the  plaintiffs  knew  that  the  cartage  had  been  received  for  this  man. 
Previous  to  this  transaction  the  defendants  had  circulated  the  fol- 
lowing printed  notice :  "  Navigation  from  the  Trent  to  the  Mersey. 
Conveyance  of  goods  by  land  and  navigation  to  and  from  London, 
Manchester,  Warrington,  Liverpool,  Chester,  most  parts  of  the 
North,  the  Staffordshire  Potteries,  and  their  environs.  The  pro- 
prietors, having  hitherto  labored  under  several  inconveniences  to 
make  their  conveyance  worthy  the  attention  of  merchants,  etc., 
have  at  length  removed  every  obstacle,  and  can  now  promise  to 
deliver  goods  each  way  in  ten  days  with  the  utmost  punctuality, 
and  at  a  much  reduced  price,  to  an  inland  conveyance,"  etc.  Since 
this  transaction,  upon  the  arrival  of  goods,  etc.,  at  the  quay  at 
Manchester,  the  defendants  have  sent  written  notices  of  the  same  to 
the  owners,  desiring  them  to  order  the  goods  away  as  soon  as  pos- 
sible, as  they  remained  at  the  risk  of  the  owners.  A  verdict  was 
found  for  the  plaintiffs  at  the  sittings  after  last  term  at  Guild- 
hall, before  Lord  Kenyon;  to  set  aside  which  a  rule  having  been 
obtained. 

Lord  Kexyon,  Ch.  J.  This  is  a  question  of  very  general  concern, 
since  feAv  days  in  the  year  occur  in  which  cases  do  not  arise  that 
may  depend  upon  it;  and  therefore  it  were  to  be  wished  that  this 
case  should  have  called  for  a  decision  upon  the  point,  which  should 
have  left  no  doubt  in  future  respecting  the  extent  to  which  common 
carriers  are  liable.  But  peculiar  circumstances  exist  in  this  case, 
which  render  it  unnecessary  to  decide  the  general  question;  though 
as  the  whole  has  been  argued  at  the  bar,  I  will  give  my  opinion  on 
the  general,  as  well  as  the  particular,  question  made.  I  lay  no 
stress  on  the  circumstances  so  much  relied  on,  that  the  defendants 
named  themselves  on  their  card,  "carriers  by  land  and  navigation;  " 
that  was  introduced  in  order  to  advertise  the  public  that  they  would 
carry  the  whole  distance  from  London  to  the  most  extreme  point, 
including,  in  several  places,  intervals  by  land  between  one  navigable 
cut  and  another;  this,  therefore,  could  have  no  reference  to  the 
article  of  carriage  from  the  navigation  at  Manchester  to  the  plain- 
tiffs' warehouse.  On  the  point  of  law,  the  rule  is  too  clear  to  admit 
of  any  doubt;  the  only  question  is  respecting  the  application  of  the 
facts  in  this  case  to  it.  Whether  at  the  time  when  the  accident 
happened  the  goods  were  in  the  custody  of  the  defendants  as  com- 
mon carriers?  because  if  they  were,  by  the  strict  rules  of  the  law 
the  defendants  are  responsible,  carriers  being  insurers  in  all  cases 
except  in  two.  That  the  plaintiffs'  goods  were  in  the  custody  of 
the  defendants  as  carriers,  when  they  were  navigated  on  their  own 
canal,  there  is  no  doubt;  it  is  equally  clear  that  they  were  so  during 
the  time  when  they  were  on  the  Duke  of  Bridgewater's  canal,  which 
is  open  to  the  public,  they  paying  the  Duke  tonnage  on  it;  it  is  as 


262  CARRIERS   OF   GOODS. 

clear  that  when  the  goods  arrived  at  Manchester,  they  were  unloaded 
with  due  care  and  circumspection,  and  deposited  in  the  Duke  of 
Bridge  water's  warehouse;  after  this  a  further  act  was  to  be  done, 
the  goods  were  to  have  been  taken  away  in  carts,  but  not  by  the 
defendants,  for,  though  they  formerly  kept  carts  and  carried  away 
the  goods  of  their  customers  to  their  respective  houses,  for  some 
time  past  they  have  ceased  to  have  any  concern  with  the  carts,  or  to 
derive  any  advantage  from  cartage  whatever;  the  carts  themselves 
and  all  the  benefits  arising  from  that  part  of  the  business  belonging 
to  Hibbert.  If  indeed  there  had  been  any  frautl  in  this  transaction, 
as  if  the  defendants  had  induced  the  public  to  believe  that  they 
would  be  responsible  in  all  cases,  and,  in  order  to  excuse  themselves, 
had  relied  on  some  secret  agreement  between  them  and  Hibbert, 
that  might  have  varied  the  case;  but  in  tlie  first  place  we  cannot 
presume  fraud,  and  in  the  next,  there  are  no  facts  in  the  case  from 
which  we  could  presume  it.  If  the  defendants  here  be  liable,  con- 
sider how  far  the  liability  of  carriers  will  be  extended:  it  will  affect 
the  owners  of  ships  bringing  goods  from  foreign  countries  to  mer- 
chants in  London;  are  they  bound  to  carry  tlie  goods  to  the  ware- 
houses of  the  merchants  here,  or  will  they  not  have  discharged  their 
duty  on  landing  them  at  the  wharf  to  which  they  generally  come  ? 
It  would  be  strange,  indeed,  if  the  owners  of  a  West  Indiaman  were 
held  liable  for  any  accident  that  happened  to  goods  brouglit  by  them 
to  England,  after  having  landed  them  at  their  usual  wharf.  The 
instance  of  game,  which  has  been  mentioned  at  the  bar,  shows  the 
general  sense  and  understanding  of  the  public  on  this  subject.  The 
different  claims  f)f  the  respective  persons  concerned  are  separately 
marked  on  tlic  direction.  The  carrier  who  receives  a  certain  sum 
for  carrying  the  game,  is  not  bound,  in  consideration  of  that  sum, 
to  deliver  the  goods;  he  has  performed  his  duty  when  he  has 
brought  the  game  to  the  inn  where  he  puts  uj);  then  the  business  of 
the  porter  begins.  I  am  not  aware  tliat  it  has  ever  been  decided 
that  it  is  th(^  duty  of  the  carrier  to  deliver  such  goods  at  tlie  house 
of  every  individual  person  to  whom  they  are  directed;  if  it  has,  tlie 
action  brought  by  Mr.  Price  against  tlie  keeper  of  the  liell  Inn  was 
misconceived;  it  should  have  been  brought  against  the  carrier,  ami 
not  the  innkeeper;  and  yet  it  did  not  occur  to  tlie  defendants' 
counsel,  in  that  case,  to  make  such  an  objection,  Wlien  goods  are 
sent  by  a  coach,  a  letter  of  advice  should  also  be  sent  to  the  person 
to  whom  they  are  directed  that  he  may  send  for  them :  or  the  price 
whicli  tlie  porter  exfjccts  to  receive  for  delivering  them  will  induce 
Huch  porter  to  carry  them;  but  the  carriage  and  jiorteragc  constitute 
di.stinet  charges. 

In  this  case,  however,  there  is  one  peculiar  circumstance,  which 
makes  it  unneces.sary  to  decide  the  general  (luestion,  and  that  is  the 
charge  made  by  tlie  defendants  in  one  of  tlieir  bills  for  the  cartage 
at  ManchoHtcr;  for  that  charge  the  defend.uits  innhrfook  to  delivir 


DELIVERY   BY   CARRIER.  263 

the  goods.  Therefore,  without  deciding  the  general  question,  I 
think  the  plaintiffs  are  entitled  to  the  verdict  which  they  have 
obtained.  On  the  general  point,  I  have  great  doubts ;  the  leaning 
of  my  mind  at  present  is,  that  carriers  are  not  liable  to  the  extent 
contended  for. 

AsHHURST,  J.  I  am  glad  to  find  one  circumstance  which  puts  the 
case  out  of  all  doubt;  namely,  that  one  of  the  bills  contains  a  charge 
for  the  wharfage  and  cartage;  wliich  is  decisive  to  show  that  in  this 
case  the  liability  of  the  defendants  continued  until  the  goods  were 
delivered.  Had  it  not  been  for  this  circumstance,  I  should  have 
desired  further  time  to  consider  the  case.  The  inclination  of  my 
opinion  on  the  general  question  is,  that  a  carrier  is  bound  to  deliver 
the  goods  to  the  person  to  whom  they  are  directed.  A  contrary 
decision  would  be  highly  inconvenient,  and  would  open  the  door  to 
fraud;  for  if  the  liability  of  a  carrier  were  to  cease  when  he  had 
brought  the  goods  to  any  inn  where  he  might  choose  to  put  up  his 
coach,  and  a  parcel  containing  plate  or  jewels,  brought  by  him,  were 
lost  before  it  was  delivered  to  the  owner,  the  latter  would  only  have 
a  remedy  against  a  common  porter.  It  has  been  said,  however,  that 
it  is  the  practice  of  many  persons  to  send  to  the  inn  for  their  goods; 
but  that  does  not  prove  that  the  carrier  is  not  bound  to  deliver  them, 
if  they  do  not  send.  If  the  owner  choose  to  send  for  his  goods, 
that  merely  discharges  the  carrier  from  his  liability  in  that  case;  it 
only  dispenses  with  the  general  obligation  thrown  by  the  law  upon 
the  carrier;  but  it  does  not  apply  to  the  other  cases  where  that 
obligation  is  not  dispensed  with.  But  on  this  question  I  do  not 
mean  to  give  any  decided  opinion. 

BuLLER,  J.  Upon  the  general  question  my  opinion  coincides  with 
that  given  by  my  brother  Ashhurst;  and  according  to  the  defendants' 
own  argument  great  inconveniences  would  result  to  the  public  from 
adopting  any  other  rule.  According  to  their  argument,  there  must 
be  two  contracts  in  all  cases  where  goods  are  sent  by  a  coach  or  a 
wagon ;  but  I  think  the  same  argument  tends  to  establish  the  neces- 
sity of  three, —  one  with  the  carrier,  another  with  the  innkeeper,  and 
a  third  with  the  porter.  But  in  fact  there  is  but  one  contract :  there 
is  nothing  like  any  contract  or  even  communication  between  any 
other  person  than  the  owner  of  the  goods  and  the  carrier;  the  carrier 
is  bound  to  deliver  the  goods,  and  the  person  who  actually  delivers 
them  acts  as  the  servant  of  the  carrier.  This  does  not  militate 
against  the  decision  in  the  action  alluded  to  against  the  innkeeper. 
In  general  it  happens  that  the  innkeeper  in  London  has  some  interest 
or  concern  in  the  coaches  and  wagons  that  put  up  at  his  house ;  in 
those  cases  he  is  liable  as  carrier;  but  even  if  this  fact  were  not 
proved  in  that  case,  the  porter  was  considered  as  the  servant  of  the 
innkeeper;  and  if  the  latter  insisted,  by  his  servant,  that  he  would 
not  part  with  the  game  until  he  had  received  more  than  he  was 
entitled  to,  he  was  a  wrong-doer  and  liable  to  an  action  of  trover. 


264  CARRIERS   OF   GOODS. 

It  has  been  said  too,  that  the  place  of  a  porter  is  valuable,  and  is  the 
subject  of  a  purchase;  but  who  sells  the  place?  "Who  agrees  with 
him  that  he  shall  be  the  porter  ?  Not  the  person  to  whom  the  goods 
are  sent,  but  the  carrier  and  the  innkeeper,  whom  I  consider  as  the 
same  person.  But  if  the  innkeeper  have  no  share  in  the  profits  of 
the  carriage,  and  receives  the  goods  for  the  purpose  of  delivering 
them  to  the  owners,  then  the  innkeeper  is  the  servant  of  the  carrier 
as  well  as  the  porter.  Therefore,  whether  there  be  the  innkeeper  and 
the  porter,  or  the  porter  only,  the  carrier  is  liable  in  all  cases  where 
the  goods  are  lost  after  they  get  into  the  hands  of  the  innkeeper  or 
porter,  because  they  are  delivered  to  those  persons  with  the  consent, 
and  as  the  servants,  of  the  carrier.  It  does  not  appear  to  me  that 
the  difficulties  suggested  respecting  foreign  ships  exist.  When 
goods  are  broiight  here  from  foreign  countries,  they  are  brought 
under  a  bill  of  lading,  which  is  merely  an  undertaking  to  carry  from 
port  to  port.  A  ship  trading  from  one  port  to  another  has  not  the 
means  of  carrying  the  goods  on  land;  and,  according  to  the  estab- 
lished course  of  trade,  a  delivery  on  the  usual  wharf  is  such  a 
delivery  as  will  discharge  the  carrier. 

In  this  case,  however,  I  have  not  the  least  doubt.  The  expres- 
sion in  the  card,  circulated  by  the  defendants,  "carriers  by  land 
and  navigation,"  cannot  indeed  have  much  weight  for  the  reason 
given;  but  I  rely  on  the  charge  which  the  defendants  compelled  the 
plaintiffs  to  i)ay  before  they  would  engage  to  deliver  the  goods. 
Hibbert  was  originally  a  servant  to  the  defendants;  and  though  he 
has  since,  by  agreement  with  them,  undertaken  the  cartage  on  his 
own  account,  and  received  the  whole  profits  of  it  himself,  that  can- 
not affect  third  persons.  The  different  i»ro]irietors  may  divide  the 
profits  among  themselves  in  any  way  they  choose,  but  they  cannot 
by  their  own  agreement  with  eacli  other  exonerate  themselves  from 
their  liability  to  the  owner  of  the  goods.  The  carriers  have  the 
direction  of  the  goods,  and  are  responsible  for  them  until  they  are 
delivered  to  the  owner;  and  here  the  defendants  insisted  on  n'ooiv- 
ing  a  certain  sum  of  money  for  the  whole  exjtense  of  carrying  and 
delivering,  including  the  identical  charge  of  cartage,  before  they 
would  take  the  goods  into  their  vessel.  If  the  carrier  and  porter 
were  to  make  separate  contracts  with  the  owner  of  the  goods,  the 
latter  would  at  least  have  the  o[ition  of  sending  his  own  carts  to 
brirjg  away  his  goods;  whereas  here  the  defendants  put  the  goods 
into  the  Duke  of  liridgewater's  warehouse  at  once,  in  order  to  send 
them  afterwards  to  the  plaintiffs  by  a  i)articular  cart  of  their  own. 
The  defendants  say,  liowever,  that  they  are  warehouse-men  as  well 
as  carriers.  That  they  may  fill  those  two  different  characters  at 
different  times,  I  am  ready  to  admit;  but  I  deny  that  they  can  be 
Ixjtli  warehouse-men  and  carriers  at  the  same  instant.  In  this  case 
they  received  the  goods  in  the  cajtacity  of  carriers;  and,  as  the 
engagement  was  to  carry  and  dilinr  tliem,  tlie  goods  remained   in 


DELIVERY   BY   CAUKIEK.  265 

their  custody  as  carriers  the  whole  time.  The  case  of  Garside 
aj^'ainst  these  defendants  is  perfectly  distinguishable  from  the 
present:  there  the  engagement  on  tlie  jiart  of  the  defendants  was 
merely  to  carry  the  goods  to  Manclicstin-;  and,  liaving  discliarged 
their  duty  in  carrying  them  to  tliat  place,  their  lialnlity  ceased.  It 
was  proved  in  that  case,  that  if  the  defendants  had  had  the  means 
of  forwarding  the  goods  from  Manchester  to  Stockport,  tliey  were 
ready  to  have  delivered  them  to  the  Stockport  carrier;  but  no  such 
carrier  l)eing  then  arrived,  what  were  the  defendants  to  do?  They 
had  carried  the  goods  to  the  place  of  delivery  according  to  tlieir 
contract,  and  there  being  no  one  there  ready  to  receive  them,  the 
next  thing  to  be  done  was  to  deposit  them  in  a  place  of  safe  custody, 
and  then  their  contract  was  at  an  end.  liut  in  this  case  the  contract 
was  not  only  to  carry,  but  to  deliver,  tlie  goods  at  Manchester;  and 
the  plaintiffs  had  not  the  option  of  taking  tliem  from  the  quay 
before  they  were  put  into  the  warehouse  by  the  side  of  tlie  canal. 
The  preference  given  by  the  defendants  to  llibbert,  respecting  the 
cartage,  is  also  a  material  circumstance:  it  is  like  the  case  of  an 
innkeeper,  wlio  agrees  with  his  head  hostler,  that  the  latter  shall 
supply  the  customers  witli  post-horses;  in  which  case,  if  goods  be 
lost,  the  innkeeper  is  liable,  because  he  holds  himself  out  to  the 
public  as  the  responsible  person,  and  his  engagement  with  his  ser- 
vants cannot  vary  the  contract  between  him  and  the  pu])lic.  So,  in 
tliis  case  Hibbert  was  the  servant  of  tlie  defendants,  and  tlie  goods 
were  still  in  the  custody  of  the  defendants  as  carriers,  at  the  time 
when  the  fire  happened. 

Gkosk,  J.  The  question  in  this  cause  is,  Whether  the  plaintiff's 
goods,  when  they  were  consumed  by  the  fire,  were  or  were  not  in 
the  custody  of  the  defendants  as  covimon  ctvrrlers?  Undoubtedly 
they  were  so,  unless  the  dcd'endants  had,  according  to  their  under- 
taking, delivered  them  to  the  plaintiffs.  And  then  arises  the 
material  question.  Whether  the  delivery  of  the  goods  at  the  ware- 
house at  Manchester  were  a  delivery  to  the  plaintiffs?  It  seems  to 
me  that  upon  the  circumstances  of  tliis  case  it  cannot  be  considered 
to  be  a  delivery  to  tliem.  Whetlier  it  be  or  be  not  a  delivery,  may 
depend  on  the  general  custom  of  the  trade,  or  the  particular  usage 
which  has  prevailed  between  the  parties  themselves.  As  to  the 
general  custom,  it  is  a  strong  circumstance  against  the  defendants 
that  the  cotton  merchants  have  never  been  accustomed  to  send  their 
own  carts  for  their  goods,  but  those  goods  have  been  sent  to  their 
respective  owners  either  by  carts  belonging  to,  or  procured  by,  the 
defendants.  And  in  the  present  case  the  particular  transaction  is 
decisive  against  the  defendants;  for  the  cartage  was  demanded  of, 
and  paid  by,  the  plaintiffs,  before  tlie  goods  were  put  on  board  the 
defendants'  vessel;  and  from  that  circumstance  the  defendants 
undertook  to  deliver  the  goods  at  the  place  where  the  carts  were  to 
carry  them.     They  did  not  deliver  them  at  that  place;  the  delivery 


266  CARRIERS   OF    GOODS. 

at  the  warehouse  was  not  a  delivery  to  the  plaintiffs  according  to 
this  contract.  So  much  for  the  circumstances  of  this  case,  which 
leave  no  room  for  doubt.  On  the  general  question  of  law  I  am  not 
so  perfectl}-  clear,  and  if  it  had  been  necessary  to  have  decided  this 
case  on  the  general  law,  I  should  have  desired  further  time  to  con- 
sider of  it.  As  far,  however,  as  I  have  considered  this  case,  the 
strong  inclination  of  my  opinion  is,  that  the  defendants  would  be 
liable  as  common  carriers.  The  law,  which  makes  carriers  answer- 
able as  insurers,  is  indeed  a  hard  law;  but  it  is  founded  on  wisdom, 
and  was  established  to  prevent  fraud.  But  it  seems  to  me,  that  it 
would  be  of  little  importance  to  determine  that  carriers  were  liable 
as  insurers,  unless  they  were  also  bound  to  see  that  the  goods  were 
carried  home  to  their  place  of  destination;  since  as  many  frauds 
may  be  practised  in  the  delivery  as  in  the  carriage  of  them.  In 
general  the  carrier  appoints  a  porter  who  ]>rovides  a  cart  for  the 
purpose  of  delivering  the  goods;  but  it  would  be  open  to  an  infinity 
of  frauds,  if  the  carrier  could  discharge  himself  of  his  responsibility 
by  delivering  them  to  a  common  porter,  a  person  of  no  substance,  a 
beggar,  of  whose  name  the  owner  of  the  goods  never  heard,  and 
against  whom,  in  the  event  of  the  goods  being  lost,  there  could  be 
no  substantial  remedy.  In  this  case  the  carriers  fixed  on  the  ])ar- 
ticular  warehouse  at  which  the  goods  were  deposited  on  their  arrival 
at  Manchester,  and  made  an  agreement  with  their  own  servant 
Hibbert,  respecting  the  cartage.  The  defendants,  therefore,  ought 
to  be  answerable  for  tlie  acts  of  those  persons  wliom  they  nominate. 
With  respect  to  the  case  of  Garside  against  this  company;  there  the 
goods  were  delivered  at  least  as  far  as  the  defendants  were  bound  to 
deliver  them.  The  case  of  foreign  goods  brought  to  this  country 
depends  on  the  custom  of  the  trade,  of  wliioli  tlie  j)ersons  engaged 
in  it  are  supposed  to  be  cognizant:  by  the  general  custom  tlie  liabil- 
ity of  ship-carriers  is  at  an  end  when  the  goods  are  landed  at  the 
usual  wharf.  On  the  particular  circumstances  of  this  case  I  am 
clearly  of  opinion  that  tlie  verdict  is  right.  And  on  the  general 
question  of  law,  I  do  not  mean  to  be  bound  by  the  opinion  I  have 
now  given,  though  at  present  I  tliink  tliat  common  carriers  are 
answerable  if  the  goods  bg  lost  at  any  time  before  they  are  delivered 
to  tlie  owners.  liulc  (lisr/Kirr/nl. 


i;.\TJ)WIX,     I'l.AiN-TiFK    IN    Ekrou,   V.    AMKKK'AN    KXTUKSS 
(  ()Mi'ANy,    Dkkkndant  in  Eicuoit. 

•_':;  111.  1!>7.     1S59. 

This  was  an  action  of  (iKsnvi/isit  brouglit  at  tlif  Aj^ril  Term  of  the 
Cook  County  Circuit  Court  liy  the  jjlaintilT  in  error,  to  recover  the 
value  of  a  package  of   money  wliirli    the  defemiant,  as  a  common 


DELIVEKY   BY   CARRIER.  267 

carrier,  undertook  to  convey  from  Chicago,  Illinois,  to  Madison, 
Wisconsin,  and  there  to  be  delivered  to  D.  J.  Baldwin,  or  his 
avithorized  agents,  and  which  undertaking  the  said  defendant  failed 
to  perform. 

Breese,  J.  The  question  in  this  case  is,  was  there  sufficient 
evidence  of  a  delivery  of  this  package,  or  of  an  offer  to  deliver,  as 
will  discharge  the  liability  of  the  express  company  as  a  common 
carrier,  or  change  it  into  the  liability  of  a  depository  simply. 

There  is  no  count  in  the  declaration  against  the  defendant,  charg- 
ing any  other  contract  with  it  than  that  as  a  common  carrier,  and 
consequently,  all  evidence  in  relation  to  the  security  of  the  safe,  or 
the  absence  of  a  night  watch,  is  out  of  the  question.  The  defendant 
can  only  be  liable  as  a  common  carrier,  and  in  no  other  character  on 
this  declaration.  We  do  not  consider  there  is  any  offer  to  deliver 
this  package  either  to  the  officers  of  the  Dane  County  Bank  or  to 
Flowers,  or  to  any  one  in  his  employment  authorized  to  receive  it, 
proved. 

The  testimony  of  Douglas,  the  agent  of  the  express  company, 
taken  in  connection  with  that  of  Memhard,  the  messenger,  of  Tread- 
way,  one  of  the  employees  of  the  bank,  and  of  Brown,  the  cashier 
of  the  bank,  and  of  Willis,  the  clerk  of  Flowers,  all  go  to  show  that 
the  package  was  not  ever  tendered  by  Douglas  to  either  of  them, 
and  he  shows  most  clearly  that  the  package  was  at  no  time  ready  for 
delivery,  either  to  the  bank  or  to  Flowers,  for  he  says  it  was  the 
custom  at  the  express  office  to  enter  the  packages  received  in  a 
delivery  book,  which  is  also  the  receipt  book,  and  by  which  book 
they  deliver  to  consignees,  who  sign  a  receipt  in  this  delivery  book. 
Now  this  package  was  never  entered  on  this  book,  and  of  course 
was  not  ready  for  delivery. 

The  bank  had  no  opportunity  to  refuse  to  receive  the  package, 
for  it  was  not  offered  to  any  officer  of  the  bank.  One  or  more  of 
them  was  informed  there  was  such  a  package  there  for  Baldwin, 
but  though  the  bank  office  was  not  five  steps  distant,  and  in  the 
same  building  with  the  express  office,  the  express  agent  did  not 
take  it  to  the  bank,  and  there  offer  to  deliver  it.  It  was  not  offered 
to  Flowers,  or  his  clerk,  at  his  place  of  business.  The  clerk  was 
merely  told  by  the  messenger  when  making  his  rounds,  there  was 
a  package  for  Baldwin  at  the  office,  and  the  clerk  said  he  would 
"go  round  and  see  about  it."  When  at  the  office,  the  package  was 
not  offered  to  him,  and  if  it  had  been,  he  would  not  have  been 
authorized  to  receive  it  at  the  office,  it  not  having  been  entered  on 
the  delivery  book,  and  the  custom  of  the  express  company  being 
shown  to  be,  at  Madison,  to  deliver  by  that  book  to  the  consignees 
in  person,  or  to  their  authorized  agent,  at  their  place  of  business. 
An  offer  to  deliver  at  the  express  office,  if  that  was  proved,  under 
such   circumstances,  amounted  to  nothing. 

Mr.  Fargo,  the  general  agent  of  this  company,  says,  "  we  deliver 


258  CARRIERS   OF   GOODS. 

"•oods  actually  to  the  person,  or  by  notice,"  by  which  vre  would 
understand,  that  at  important  towns  on  their  routes,  and  at  the  ter- 
mination of  their  routes  at  important  towns,  they  deliver  personally; 
at  way-stations  by  notice,  and  by  depositing  the  goods  or  packages 
in  a  safe  receptacle,  if  that  be  the  known  custom  of  the  com- 
pany. Such  a  custom  may  be  reasonable,  and  therefore  legal,  and 
if  well-established,  parties  will  be  presumed  as  having  contracted 
with  reference  to  it;  but  at  small  stations,  where  the  business 
will  not  justify  them  in  keeping  a  special  delivery  agent,  prompt 
notice  should  be  given  to  the  consignee,  in  order  to  discharge  them 
from  the  strict  liability  of  common  carriers.  Mr.  Van  Vleet,  the 
check  clerk  in  the  United  States  express  oflice,  says  that  "the 
general  method  of  conducting  an  express  business  is  to  take  receipts 
in  a  receipt  book,  which  is  called  the  delivery  book."  This  was 
the  custom,  as  proved  by  Douglas  of  the  defendants,  at  Madison. 

The  cases  cited  by  defendant's  counsel,  of  vessels  and  railroad 
companies  delivering  goods  at  their  landings  or  depots  with  or  with- 
out notice,  cannot  meet  such  a  case  as  this,  where  the  undertaking 
is  to  deliver  in  person. 

It  is  the  settled  doctrine  of  England  and  of  this  country,  that 
there  must  be  an  actual  delivery  to  the  proper  person,  at  his  resi- 
dence or  place  of  business,  and  in  no  other  way  can  he  discliarge 
himself  of  his  responsibility  as  a  common  carrier,  except  by  proving 
that  he  has  performed  such  engagement,  or  has  been  excused  from 
the  ])erformance  of  it,  or  been  prevented  by  the  act  of  God  or  a  public 
enemy. 

Stephenson  v.  Hart,  4  Bing.  476;  Garnett  v.  Willan,  5  Barn.  & 
Aid.  5.3;  Duff  v.  Budd,  3  Brod.  &  Bing.  177;  Hyde  v.  The  Naviga- 
tion Company,  from  the  Trent  to  the  Mersey,  5  T.  R.  389  [260];  2 
Kent  Com.  604;  Gibson  v.  Culver,  17  Wend.  305;  Eagle  v.  White, 
6  Wharton,  505;  Moore  v.  Sheindine,  2  Har.  &  ^IcHen.  453;  Chick- 
ering  v.  Forolm,  4  Mass.  453;  Young  v.  Smith,    3  Dana,  92. 

It  is  necessary,  in  order  to  give  one  security  to  property,  this 
rigid  rule  should  obtain,  and  it  has  for  years  been  enforced  against 
common  carriers.  They  are  considered  as  insurers,  and  are  under 
that  responsibility;  and  to  prevent  litigation,  and  avoid  the  neces- 
sity of  going  into  the  examination  of  matters  ditticult  to  be  unrav- 
elled, the  law  very  justly,  in  case  of  loss,  presumes  against  them. 
Th(;  rule  being  so  rig(jrous,  they  are  entitled  to  demand,  and  do 
demand,  a  compensation  for  their  services  in  full  proportion,  at 
least,  to  the  risks  incurred.  The  company  in  this  case  have  shown 
no  excuse  for  the  non-delivery  of  the  j)ackage.  The  facts  and  the 
law  are  against  tliem.  We  have  not  the  opportunity  to  examine  the 
case  of  Marsliall  et  al.  v.  Henry  Wells  et  nL,  in  6  Wisconsin,  7 
Wis.  1,  referred  to  by  defendant's  counsel,  in  which  this  company 
prevailed,  as  is  said,  upon  the  same  state  of  facts  ujjon  which  we 
have  adjudicated.     We  are   inelined  to  think  tliere  nnist  liave  l)een 


DELIVERY    BY   CARRIER.  269 

some  circumstance  in  that  case  not  found  in  this,  which  determined 
the  recovery.  It  may  be  the  proof  in  that  case  showed  the  entry  of 
the  package  on  the  delivery  book,  and  an  offer  at  the  bank  perhaps, 
after  bank  hours,  and  a  refusal  to  receive  it  on  that  account,  or 
some  other  controlling  fact  not  appearing  in  this  record. 

If  not  so,  then  we  can  only  say,  we  differ  from  the  Supreme  Court 
of  Wisconsin  in  our  view  of  the  law  upon  the  facts  presented. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause 
remanded. 


PACKARD  V.   EARL. 
113  Mass.  280.     1873. 

Tort  against  the  defendants  as  common  carriers  for  the  loss  of  a 
trunk  and  its  contents,  intrusted  to  them  to  be  carried  fronTTrovT- 
dence,  Rhode  Island,  to  West  Mansfieldj_Massachusetts,  and  to  be 
there  delivered  to  the  plaintiff. 

At  the  trial  in  the  Superior  Court,  before  Pitman,  J.,  it  appeared 
that  the  defendants  were  express  carriers  over  the  line  of  the  Boston 
&  Providence  Railroad  from  Providence  to  Boston,  and  intermediate 
stations;  that  the  trunk  was  delivered  to  them  at  their  office  in 
Providence,  on  Saturday,  March  2,  1872,  to  be  carried  by  them  as 
expressmen  to  the  plaintiff  at  West  Mansfield,  a  station  on  the 
railroad;  that  it  was  marked  "Henry  M.  Packard,  West  Mansfield;  " 
that  no  special  directions  as  to  the  delivery  were  given;  that  the 
plaintiff  did  business  in  Wrentham,  during  the  week,  and  was 
accustomed  to  spend  Sundays  at  his  father's  house,  about  one-half 
of  a  mile  from  the  West  Mansfield  station;  that  the  Boston  &  Provi- 
dence Railroad  Company  had  had  a  depot  at  West  Mansfield  for 
about  twenty  years,  where  some  of  their  trains  had  stopped  for 
receiving  and  leaving  passengers  and  merchandise ;  that  the  defend- 
ants and  other  express  carriers  on  the  line  of  the  railroad  had  been 
accustomed  to  deliver  and  receive  at  that  station,  parcels,  carried 
and  to  be  carried  by  them  employing  the  station  agent  and  switch- 
tender  as  their  agents;  that  the  amount  of  express  business  there 
was  very  small ;  that  no  messenger  had  ever  been  employed  there  by 
any  express  carriers  for  the  delivery  of  goods;  that  it  had  been  the 
uniform  course  of  business  of  all  express  carriers  to  deliver  all 
goods  and  parcels  destined  for  that  place  to  the  station  agent,  who 
kept  them  in  the  baggage-room,  notified  the  consignees  of  their 
arrival,  and  delivered  them  when  called  for  at  the  station. 

Endicott,  J.  It  was  the  duty  of  the  defendants,  as  comjuon 
carriers  of  parcels,  to  deliver  the  trunk  to  the  plaintiff  personally  or 
at  his  residence  at  West  Mansfield,  and  until  such  delivery  their 
liability  as  carriers  continued.  This  liability  they  undertook  to 
limit  by  proof  of  usage  in  their  business  to  leave  packages  sent  to 


270  CARRIERS   OF   GOODS. 

West  Mansfield  at  the  station,  with  notice  to  the  consignee  as  a  sub- 
stitute fur  personal  delivery.  This  was  not  a  general  usage  of  such 
a  character,  that  a  presumption  of  knowledge  arises  by  mere  force 
of  existence,  and  which  enters  into  and  becomes  part  of  the  agree- 
ment of  the  parties.  It  was  a  particular  usage,  local  in  its  applica- 
tion and  character,  and  confined  to  this  station,  and,  in  order  to  bind 
the  plaintiff,  it  must  be  proved  that  he  knew  it  when  he  made  the 
contract  with  the  defendants  to  carry  the  trunk.  The  instructions 
on  this  point  were  sutticiently  favorable  to  the  defendants.  Stevens 
V.  Reeves,  9  Pick.  198;  Berkshire  Woolen  Co.  v.  l*roctor,  7 
Cush.  417. 

Excejjtions  overruled. 


WITBECK,     Respoxden-t,    v.    HOLLAND,    Treasureu    of     the 
Amkiuiax  Express  Companv.   Api-ellaxt. 

45  X.  Y.  13.     l!?71. 

Appeal  from  the  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  fourth  judicial  district,  affirming  the  judgment  for  the 
plaintiff,  entered  upon  the  report  of  the  referee. 

This  action  was  tried  before  a  referee,  who  found  that  the 
American  Express  Company  was  a  joint  stock  association  engaged 
in  the  general  express  business.  That  the  plaintiff  was  a  soldier  on 
Hart's  Island,  N.  Y.,  who,  having  received  his  bounty  money  on  the 
.3d  of  December,  1SG4,  took  $.320  of  it  to  the  office  of  the  Adams 
Express  Company,  on  that  island,  where  it  was  counted,  ])ut  in  an 
envelope,  sealed  and  addressed  to  "Martin  Witbeck,  Sclienectady, 
N.  Y.,"  delivered  to  the  agent  of  the  company  who  gave  the  plain- 
tiff a  receipt  acknowledging  the  receipt  of  tlie  package,  "upon  the 
special  acceptance  and  agreement,  that  tliis  company  is  to  forward 
the  same  to  its  agent,  nearest  and  most  convenient  to  destination 
only,  and  there  to  deliver  the  same  to  other  parties  to  complete  the 
transportation,  such  delivery  to  terminate  all  liability  of  this  com- 
j)any  for  such  package,"  etc. 

Tlie  jiackage  was  delivered  l)y  the  Adams  Express  Company  on  the 
oth  December,  1SC4,  to  the  American  Express  Company  at  its  office 
in  New  York,  and  a  rccoijjt  was  givrii  to  tlio  Adams  Express 
Company  as  follows:  — 

Received,  New  York,  December  5,  l.s(J4,  of  Adams  Express  Corap.iny 
Cp'T  hills),  ill  good  order,  the  following  articles  set  opposite  their  respective 
namcfl. 


.'':.'  1 

M    •■ 

1  ><Ktination. 
triiin. 

1 

Am'                     liom 
charni.i.      )..  ..kc'd. 

!■   ... 

11  r     ^^--i-;"';""'^-- 

':  "■          My  cm. 

DELIVERY    BY   CARRIER.  271 

Myers  was  the  agent  of  the  American  Express  Company  at  'Kew 
York,  The  plaintiff,  December  8,  1864,  enclosed  the  receipt  in  a 
letter  to  his  brother,  Daniel  Witbeck,  who  resided  at  Schenectady, 
which  letter  and  receipt  were  received  by  Daniel  Witbeck  as  an 
advertised  letter  about  the  middle  of  February,  1865. 

There  was  at  the  time  no  contract  or  business  connection  between 
the  Adams  Express  Company  and  the  American  Express  Company, 
except  that  they  took  parcels,  goods,  etc.,  for  each  other  for  trans- 
portation and  delivery  along  their  respective  routes  of  business. 
The  American  Express  Company  delivered  the  package  to  its  local 
agent  at  Schenectady,  December  6,  1864.  Martin  Witbeck,  the  con- 
signee of  said  package,  resided  with  his  wife  at  Schenectady,  at  the 
time  of  the  arrival  of  the  package  at  Schenectady,  and  until  after 
January  14,  following. 

The  agent  of  the  American  Express  Company  did  not  know  Martin 
Witbeck,  and,  when  the  package  arrived,  looked  at  the  directory 
and  did  not  find  his  name  in  it.  The  next  day  the  agent  filled  up 
a  notice  and  addressed  it  to  Martin  Whitbeck,  Schenectady,  and 
deposited  it  in  the  post-office.  Between  one  and  three  days  there- 
after, the  agent  inquired  of  two  men,  conductors  upon  the  X.  Y. 
Central  Railroad,  running  from  Schenectady  to  Troy,  and  also 
inquired  of  John  Brandt,  the  city  treasurer  of  Schenectady,  whether 
he  knew  Martin  Whitbeck,  and  they  replied  they  did  not. 

The  agent  made  no  further  effort  to  find  the  consignee,  and  the 
package  was  deposited  in  the  company's  iron  safe  in  its  office  till 
January  17,  1865,  when  the  office  was  burglariously  opened  in  the 
night,  the  safe  blown  open,  the  package  abstracted  and  stolen,  and 
has  never  been  recovered. 

The  notice  put  in  the  post-office  was  not  received  by  INlartin 
Witbeck,  though  inquiries  were  made  several  times  at  the  post-office 
while  it  was  there,  by  his  wife  and  father,  for  letters  for  themselves 
and  for  him. 

The  referee  decided,  among  other  things,  that  the  American 
Express  Company  was  bound  to  deliver  the  package  to  Martin 
Witbeck,  personally,  or  at  his  residence  or  place  of  business;  that 
the  American  Express  Company  did  not  make  due  effort  to  find 
jVIartin  Witbeck,  or  his  residence  or  place  of  business ;  that  the 
plaintiff  was  entitled  to  judgment  for  $320,  with  interest  from 
December  7,  1864. 

From  the  judgment  entered  upon  the  report  the  defendant 
appealed  to  the  General  Term,  where  it  was  affirmed,  and  from 
such  judgment  of  affirmance  this  appeal  was  taken. 

Gkovek,  J.  The  facts  found  by  the  referee  showed,  beyond 
question,  that  the  defendant  was  a  common  carrier,  and  responsible, 
as  such,  for  property  delivered  to  it  for  transportation.  This  find- 
ing was  warranted  by  the  evidence.  It  was  engaged  in  transacting 
a  general  express  business.     It  is  insisted  by  the  counsel  for  the 


272  CARRIERS   OF    GOODS. 

defendant  that  its  liability  was  restricted  by  the  contract,  proved  by 
the  receipt  given  by  the  Adams  Express  Company  to  the  i)laintiff, 
upon  the  receipt  of  the  money  from  him  by  it  at  Hart's  Island. 
From  this  receipt,  it  appears  that  the  latter  company  undertook  to 
forward  the  package  to  its  agent  nearest  to  its  destination,  there 
to  deliver  it  to  other  parties  to  complete  the  transportation,  such 
delivery  to  terminate  all  liability  of  that  company  for  its  passage. 
There  is  nothing  in  this  or  any  other  restriction  at  all  affecting  the 
liability  of  the  defendant  as  a  common  carrier;  all  the  restrictions 
found  in  the  receipt  are  by  the  language  limited  to  the  liability  of 
the  Adams  Company.  Indeed,  were  they  applicable  to  the  defend- 
ant, they  would  not  affect  the  liability  of  defendant  in  the  action, 
as  they  do  not  include  the  cause  of  the  loss,  unless  they  relieve  the 
carrier  from  the  duty  of  delivery  to  the  consignee.  The  first  inquiry 
is,  whether  it  was  the  duty  of  the  carrier  so  to  deliver  the  package 
in  the  absence  of  any  restriction.  Carriers  by  land  are  bound  to 
deliver  or  tender  the  goods  to  the  consignee  at  his  residence  or  place 
of  business,  and  until  this  is  done  they  are  not  relieved  from  respon- 
sibility as  carriers.  2  Kent's  Com.  G05;  Angell  on  Carriers,  §  2o9; 
Gibson  v.  Culver,  17  Wend.  305;  Fisk  y.  Newton,  1  Den,  45.  But 
when  goods  are  safely  conveyed  to  the  place  of  destination,  and 
the  consignee  cannot,  after  reasonable  effort,  be  found,  the  carrier 
may  discharge  himself  from  further  responsibility  by  dejiositing  the 
property  in  a  suitable  place  for  the  owner.  Fisk  v.  Newton,  supra. 
Carriers  by  vessels,  boats,  and  railways  are  exempt  from  duty_of 
personal  delivery.  Redfield  on  Railways,  §  127;  Thomas  f.  Boston 
K  R.  Co.  10"Hetcalf,  472.  Such_  c_arriers  discharge  themselves 
from  responsibility,  as  such,  by  transporting  the  goods  to  their 
nearest  business  station  to  the  residence  or  place  of  business  of  tTie 
consignee,  and  notifying  the  consignee  of  their  readiness  to  deliver 
the  goods  at  sucli  station,  after  the  lapse  of  a  reasonable  time  for 
liim  to  receive  tltem.  But  this  exem]>tion  does  not  extend  to  express 
companies,  altltougli  availing  themselves  of  carriage  by  rail.  Red- 
field  on  Railways,  §  127.  These  were  establislicd  for  the  pur]^ose  of 
extending  to  tlie  public  the  advantagcs_ot;  v)ersonal  delivery  enjoyed 
in  all  cases  of  land  carriage  prior  to  the  introduction  of  transporta- 
tion by  rail. 

It  ai)i»eared  in  tlie  present  case  that  tlie  defmdant  had  its  vehicles 
by  which  they  carrit'd  articles  to  the  consignee  in  tlie  city  of 
Schenectady,  which  had  arrived  there  by  rail  under  contracts  with 
the  company  for  the  transportation.  This  is  the  usual  course  of 
transacting  business  by  such  companies;  were  it  otherwise,  the 
business  done  by  these  companies  would  be  greatly  diminished,  as 
it  would  be  equally  advantageous  in  many  cases  to  have  the  property 
transported  by  the  railroa<l  eomjiany.  Wlieii  the  defendant  received 
the  package  from  the  Adams  Comjiany  at  New  York,  consigned  to 
Martin  Witbeck,  Schenectiuly,   it  became  li.Me  as  carrier  for  its 


DELIVERY  BY  CARRIER.  273 

carriage  to  Schenectady  and  its  delivery  to  Witbeck  there,  if  with 
reasonable  diligence  he  could  be  found.  The  performance  of  this 
entire  service  was  contracted  for  by  its  receipt  so  addressed,  and 
had  the  defendant  received  it  from  the  plaintiff  at  New  York  and 
given  him  a  receipt  for  its  transportation,  the  obligation  to  make 
personal  delivery  at  Schenectady  would  have  been  incurred.  The 
only  remaining  question  arises  upon  the  exception  taken  to  the  find- 
vnp^by  thp.  rfifp.rp.R,  n.s  a.  fact,  that  the  defendant  did  not  make  due 
effort,  nor  use  due  diligence  to  find  said  Martin  Witbeck,  the  con- 
signee of  said  package.  It  is  insisted  by  the  counsel  for  the  appel- 
Tant,  that  the  question,  what  is  reasonable  diligence,  is  one  of  law. 
That  may  be  so,  when  there  is  no  conflict  in  the  evidence,  or  con- 
troversy as  to  the  facts  to  be  inferred  therefrom.  But  that  is  not 
this  case,  nor  will  most  cases  of  this  class  be  of  that  description. 
In  most,  if  not  all,  the  question  will  be  mixed,  both  of  fact  and 
law.  In  the  present  case  the  finding  of  the  referee  is  clearly  cor- 
rect. The  diligence,  which  the  law  required  of  the  defendant,  was 
such  as  a  prudent  man  would  have  used  in  an  important  business 
affair  of  his  own.  The  evidence  shows  that  the  defendant  was  so 
inattentive  as  to  mistake  the  surname  of  the  consignee.  Although 
the  package  was  addressed  to  Witbeck,  all  its  inquiries  were  made 
for  Whitbeck.  This  may  have  prevented  their  finding  him.  It 
further  appeared  that  its  inquiries  were  confined  to  a  few  persons 
in  the  vicinity  of  its  place  of  business,  and  that  by  these  it  obtained 
information  of  other  persons  of  a  like  surname,  one  of  whom  was 
the  father  of  the  consignee.  Surely  inquiry  should  have  been  made 
of  these  persons,  and  had  it  been  so  made,  delivery  would  have  been 
made  and  the  loss  would  never  have  occurred.  There  is  nothing  in 
the  point  that  the  negligence  of  the  plaintiff  in  not  giving  further 
information  as  to  the  residence  of  the  consignee  contributed  to  the 
loss.  The  defendant  accepted  the  package,  addressed  as  it  was,  and 
failed  in  the  performance  of  the  duty  imposed  thereby.  For  such 
failure  it  is  responsible,  irrespective  of  the  right  of  the  plaintiff  to 
give  additional  information.  I  have  examined  the  various  excep- 
tions taken  by  the  appellant  to  the  rulings  of  the  referee  as  to  the 
competency  of  evidence.  The  question  whether  the  consignee  was 
well  known  in  Schenectady  was  proper.  The  plaintiff  had  the 
right  to  prove  this  fact  if  he  could.  But  the  testimony  given  in 
answer  was  not  material.  None  of  the  testimony  excepted  to  could 
have  prejudiced  the  defendant.  The  judgment  appealed  from  must 
be  affirmed. 

All  the  judges  concurring,  judgment  affirmed. 

18 


274  CARIUEES    OF    GOODS. 

NORWAY   PLAINS   CO.    r.    BOSTON   AND   MAINE    R.  R. 
1  Gray  (Mass.)  2G3.     1S54. 

Action  of   contract  upon   the    agreement   of   the    defendants    to 
transport  certain  goods  from  Rochester,  N.  H.,  to  Boston.^ 

Shaw,  C.  J.     The  liability  of  carriers  of  goods  by  railroads,  the 
grounds  and  precise  extent  and  limits  of  their  responsibility,  are 
coming  to  be  subjects  of  great  interest  and  importance  to  the  com- 
munity.    It  is  a  new  mode  of  transportation,  in  some  respects  like 
the  transportation  by  ships,  lighters,  and  canal-boats  on  water,  and 
in  others  like  that  by  wagons  on  land;  but  in  some  respects  it  differs 
from  both.     Though   the   practice    is  new,  the  law,  by  which  the 
rights  and  obligations  of  owners,    consignees,    and  of  the  carriers 
themselves  are  to  be  governed,  is  old  and  well  established.     It  is 
one  of  the  great  merits   and  advantages  of  the  common  law,  that, 
instead  of  a  series  of  detailed  practical  rules,  established  by  positive 
provisions,  and  adapted  to  the  precise  circumstances  of  particular 
cases,  which  would  become  obsolete  and  fail  when  the  practice  and 
course  of  business,  to  which  they  apply,  should  cease  or  change,  the 
common  law  consists  of  a  few  broad  and  comprehensive  principles, 
founded  on  reason,  natural  justice,  and  enlightened  public  policy, 
modified  and  adapted  to  the  circumstances  of  all  the  particular  cases 
which  fall  within  it.     These  general  principles  of  equity  and  policy 
are  rendered  precise,  specific,  and  adapted  to  practical  use,  by  usage, 
which  is  the  proof  of  their  general  fitness  and  common  convenience, 
but  still  more  by  judicial  ex])osition;  so  tliat  wIumi,  in  a  course  of 
judicial  proceeding,  by  tribunals  of  the  highest  authority,  the  general 
rule  has  been  modified,  limited,  and  applied,  according  to  particular 
cases,  such  judicial  exposition,  when  well  settled  and  acquiesced  in, 
becomes  itself  a  precedent,  and  forms  a  rule  of  law  for  future  cast-s, 
under  like  circumstances.     The  effect  of  this  expansive  and  compre- 
liensive  character  of  the  common  law  is,  that  whilst  it  has  its  foun- 
dations in  the  ])rinciples  of  efpiity,  natural  justice,  and  that  general 
convenience  which  is  pul)lic  policy;  although  these  general  consider- 
ations would  be  too  vague  and  uncertain  for  practical  purposes,  in 
the  various  and  coniplicatcd  cases,  of  daily  occurrence,  in  the  busi- 
ness of  an  active  community,  —  yet  the  rules  of  the  conuuon  law,  so 
far  as  cases  have  arisen  and  i»ractices  actually  grown  up,  are  ren- 
dered, in  a  good  degree,  ])recise  and  certain,  for  i)ractical  purposes, 
by    usage   and   jurlicial    precedent.      Anotlier   conseqiuMici'   of   this 
exjiansive  character  of  the  common  law  is,  that  when  new  jiracticeji 
spring  up,  new  combinations  of  facts  arise,  and  cases  are  presented 
for  which  there  i.s  no  precedent  in  jrulicj.il  decision,  they  must  be 


DELIVERY    BY    CARRIER.  275 

governed  by  the  general  principle,  applicable  to  cases  most  nearly 
analogous,  but  modified  and  adapted  to  new  circumstances  by  con- 
siderations of  fitness  and  propriety,  of  reason  and  justice,  which 
grow  out  of  those  circumstances.  The  consequence  of  this  state  of 
the  law  is  that  when  a  new  practice  or  new  course  of  business  arises, 
the  rights  and  duties  of  parties  are  not  without  a  law  to  govern 
them ;  the  general  considerations  of  reason,  justice,  and  policy,  which 
underlie  the  particular  rules  of  the  common  law,  will  still  apply, 
modified  and  adapted,  by  the  same  considerations,  to  the  new  cir- 
cumstances. If  these  are  such  as  give  rise  to  controversy  and  liti- 
gation, they  soon,  like  previous  cases,  come  to  be  settled  by  judicial 
exposition,  and  the  principles  thus  settled  soon  come  to  have  the 
effect  of  precise  and  practical  rules.  Therefore,  although  steam- 
boats and  railroads  are  but  of  yesterday,  yet  the  principles  which 
govern  the  rights  and  duties  of  carriers  of  passengers,  and  also  those 
which  regulate  the  rights  and  duties  of  carriers  of  goods,  and  of  the 
owners  of  goods  carried,  have  a  deep  and  established  foundation  in 
the  common  law,  subject  only  to  such  modifications  as  new  circum- 
stances may  render  necessary  and  mutually  beneficial. 

The  present  is  an  action  brought  to  recover  the  value  of  two  par- 
cels of  merchandise,  forwarded  by  the  plaintiffs  to  Boston,  in  the 
cars  of  the  defendants.  These  goods  were  described  in  two  receipts 
of  the  defendants,  dated  at  Eochester,  N.  H.,  the  one  October  31st, 
1850,  and  the  other  November  2d,  1850. 

By  the  facts  agreed  it  appears  that  the  goods  specified  in  the  first 
receipt  were  delivered  at  Eochester,  and  received  into  the  cars,  and 
arrived  in  Boston  seasonably  on  Saturday,  the  2d  of  November,  and 
were  then  taken  from  the  cars,  and  placed  in  the  depot  or  warehouse 
of  the  defendants;  that  no  special  notice  of  their  arrival  was  given 
to  the  plaintiffs  or  their  agent;  but  that  the  fact  was  known  to 
Ames,  a  truckman,  who  was  their  authorized  agent,  employed  to 
receive  and  remove  the  goods,  that  they  were  ready  for  delivery,  at 
least  as  early  as  Monday  morning,  the  4th  of  November,  and  that 
lie  might  then  have  received  them. 

The  goods  specified  in  the  other  receipt  were  forwarded  to  Boston 
on  Monday,  the  4th  of  November;  the  cars  arrived  late;  Ames,  the 
truckman,  knew  from  inspection  of  the  waybill  that  the  goods  were 
on  the  train,  and  waited  for  them  some  time,  but  could  not  con- 
veniently receive  them  that  afternoon,  in  season  to  deliver  them  at 
the  places  to  which  they  Avere  directed,  and  for  that  reason  did  not 
take  them ;  in  the  course  of  the  afternoon  they  were  taken  from  tlie 
cars  and  placed  on  the  platform  within  the  depot;  at  the  usual  time 
at  that  season  of  the  year,  the  doors  were  closed.  In  the  course  of 
the  night  the  depot  accidentally  took  fire  and  was  burnt  down,  and 
the  goods  were  destroyed.  The  fire  was  not  caused  by  lightning; 
nor  was  it  attributable  to  any  default,  negligence,  or  want  of  due  care 
on  the  part  of  the  railroad  corporation,  or  their  agents  or  servants. 


276  CAKRIERS    OF    GOODS. 

We  understand  the  merchandise  depot  to  be  a  warehouse,  suitably 
enclosed  and  secured  against  the  weather,  thieves,  and  other  like 
ordinary  dangers,  with  suitable  persons  to  attend  it,  with  doors  to 
be  closed  and  locked  during  the  night,  like  other  warehouses,  used 
for  the  storage  of  merchandise;  that  it  is  furnished  with  tracks,  on 
which  the  loaded,  cars  run  directly  into  the  depot  to  be  unloaded ; 
that  there  are  platforms  on  the  sides  of  the  track,  on  which  the  goods 
are  first  placed ;  that  if  not  immediately  called  for  and  taken  by  the 
consignees,  they  are  separated  according  to  their  marks  and  direc- 
tions, and  placed  by  themselves  in  suitable  situations  within  the 
depot,  there  to  remain  a  reasonable  ami  convenient  time,  witliout 
additional  charge,  until  called  for  by  parties  entitled  to  receive 
them. 

The  question  is  whether,  under  these  circumstances,  the  defendants 
are  liable. 

That  railroad  companies  are  authorized  by  law  to  make  roads  as 
public  highways,  to  lay  down  tracks,  place  cars  upon  them,  and  carry 
goods  for  hire,  are  circumstances  which  bring  them  within  all  the 
rules  of  the  common  law,  and  make  them  eminently  common  car- 
riers. Their  iron  roads,  though  built,  in  the  first  instance,  by  indi- 
vidual capital,  are  yet  regarded  as  public  roads,  required  by  common 
convenience  and  necessity,  and  their  allowance  by  public  authority 
can  be  only  justified  on  that  ground.  The  general  principle  has 
been  uniformly  so  decided  in  England  and  in  this  country;  and  tlie 
point  is,  to  ascertain  the  precise  limits  of  their  liability.  This  was 
done  to  a  certain  extent  in  this  court,  in  a  recent  case,  with  which, 
as  far  as  it  goes,  we  are  entirely  satisfied.  Thomas  v.  Boston  & 
Providence  Railroad,  10  Met.  472. 

Being  liable  as  common  carriers,  the  rule  of  the  common  law 
attaches  to  tliem,  that  they  are  liable  for  losses  occurring  from  any 
accident  which  may  befall  the  goods,  during  tlie  transit,  except 
those  arising  from  the  act  of  God  or  a  ]mblic  enemy.  It  is  not 
necessary  now  to  inquire  into  the  weight  of  those  considerations  of 
reason  and  i)olicy,  on  which  the  rule  is  founded,  nor  to  consider 
what  casualty  may  be  held  to  result  from  an  act  of  (Jod,  or  a  ])\ibl  it- 
enemy;  because  the  present  case  does  not  turn  on  any  sucli  distinc- 
tion. It  is  sufficient,  therefore,  to  state  and  affirm  the  general  rule. 
In  the  present  case,  the  loss  resulted  from  a  fire,  (d'  wliich  there  is 
no  ground  to  suggest  that  it  was  an  act  of  Ood;  and  it  is  equally 
dear  tliat  it  did  not  result  from  any  default  or  negligence  on  the 
l)art  of  the  company,  tliough  the  goods  remained  in  their  custody. 
If,  at  the  time  of  the  loss,  tliey  were  liable  as  common  carriers, 
thfy  must  abide  by  the  loss;  because,  as  common  carriers,  they 
were  bound  as  insurers  to  take  the  risk  of  lire,  not  c.iusfd  by  the  act 
of  God,  and  in  such  case  no  question  of  dct.iult  or  negligence  (^an 
arise.  Proof  that  it  was  from  a  cause  for  which  tluiy,  neither  by 
themselves  nor  tlieir  servants,  were  in  any  degree  chargcaltlf,  cfnild 


DELIVERY   BY   CARRIER.  277 

amount  to  no  defence,  and  would  therefore  be  inadmissible  in  evi- 
dence. If,  on  the  contrary,  the  transit  was  at  an  end,  if  the  defend- 
ants had  ceased  to  have  possession  of  the  goods  as  common  carriers, 
and  held  them  in  another  capacity,  as  warehousemen,  then  they 
were  responsible  only  for  the  care  and  diligence  which  the  law 
attaches  to  that  relation ;  and  this  does  not  extend  to  a  loss  by  acci- 
dental fire,  not  caused  by  the  default  or  negligence  of  themselves, 
or  of  servants,  agents,  or  others,  for  whom  they  are  responsible. 

The  question  then  is,  when  and  by  what  act  the  transit  of  the 
goods  terminated.  It  was  contended,  in  the  present  case,  that,  in 
the  absence  of  express  proof  of  contract  or  usage  to  the  contrary, 
the  carrier  of  goods  by  land  is  bound  to  deliver  them  to  the  con- 
signee, and  that  his  obligation  as  carrier  does  not  cease  till  such 
delivery. 

This  rule  applies,  and  may  very  properly  apply,  to  the  case  of 
goods  transported  by  wagon  and  other  vehicles,  traversing  the  com- 
mon highways  and  streets,  and  which  therefore  can  deliver  the 
goods  at  the  houses  of  the  respective  consignees.  But  it  cannot 
apply  to  railroads,  whose  line  of  movement  and  point  of  termination 
are  locally  fixed.  The  nature  of  the  transportation,  though  on  land, 
is  much  more  like  that  by  sea,  in  this  respect,  that  from  the  very 
natufe~ot  the  case,  themerchandise  can  only  be  transpo"i^ed_along 
one  line,  and  delivered  at  its  termination,  or  at  some  fixed  place  by 
its  side,  at  some  intermediate  point.  The  rule  in  regard  to  ships 
is  very  exactly  stated  in  the  opinion  of  Buller,  J.,  in  Hyde  v.  Trent 
&  Mersey  Navigation,  5  T.  E.  397.  "A  ship  trading  from  one  port 
to  another  has  not  the  means  of  carrying  the  goods  on  land;  and, 
according  to  the  established  course  of  trade,  a  delivery  on  the  usual 
wharf  is  such  a  delivery  as  will  discharge  the  carrier." 

Another  peculiarity  of  transportation  by  railroad  is  that  the  car 
cannot  leave  the  track,  or  line  of  rails,  on  which  it  moves;  a  freight 
train  moves  with  rapidity,  and  makes  very  frequent  journeys,  and 
a  loaded  car,  whilst  it  stands  on  the  track,  necessarily  prevents 
other  trains  from  passing  or  coming  to  the  same  place;  of  course, 
it  is  essential  to  the  accommodation  and  convenience  of  all  persons 
interested,  that  a  loaded  car,  on  its  arrival  at  its  destination,  should 
be  unloaded,  and  that  all  the  goods  carried  on  it,  to  whomsoever 
they  may  belong,  or  whatever  may  be  their  destination,  should  be 
discharged  as  soon  and  as  rapidly  as  it  can  be  done  with  safety. 
The  car  may  then  pass  on  to  give  place  to  others,  to  be  discharged 
in  like  manner.  From  this  necessary  condition  of  the  business,  and 
from  the  practice  of  these  transportation  companies  to  have  plat- 
forms on  which  to  place  goods  from  the  cars,  in  the  first  instance, 
and  warehouse  accommodation  by  which  they  may  be  securely  stored, 
the  goods  of  each  consignment  by  themselves,  in  accessible  places, 
ready  to  be  delivered,  the  court  are  of  opinion  that  the  duty  assumed 
by  the  railroad  corporation  is  —  and  this,  being  known  to  owners  of 


27S  C.VKRIEKS   OF   GOODS. 

goods  forwarded,  must,  in  the  absence  of  proof  to  the  contrary,  be 
p r e s unifd  to  be  assented  to  by  them,  so  as  to  constitute  the  im])lied 
cuntrac-t  between  them  —  that  thev  -will  carry  the  goods  safely  to 
the  ]dace  of  destination,  and  there  discharge  them  on  the  i^batform, 
and  then  and  there  deliyer  them  to  the  consignee  or  party  entitled 
to  receiye  them,  if  he  is  there  ready  to  take  them  fort.lnvith;  or  it 
the  consignee  is  not  there  ready  to  take  tliem.  then  to  place  them 
securely  and  keep  them  safely  a  reasonable  time,  ready  to  be 
deliyered  when  called  for.  This,  it  appears  to  us,  is  the  spirit  and 
legal  effect  of  the  public  duty  of  the  carriers,  and  of  the  contract 
between  the  parties  when  not  altered  or  moditied  by  special  agree- 
ment, the  effect  and  operation  of  which  need  not  here  be  considered. 

This  we  consider  to  be  one  entire  contract  for  hire;  and  although 
there  is  no  separate  charge  for  storage,  yet  the  freight  to  be  paid, 
fixed  by  the  company  as  a  compensation  for  the  whole  service,  is 
paid  as  well  for  the  temporary  storage  as  for  the  carriage.  This 
renders  both  the  services,  as  well  the  absolute  undertaking  for  the 
carriage,  as  the  contingent  undertaking  for  the  storage,  to  be  ser- 
vices undertaken  to  be  done  for  hire  and  reward.  From  this  view  of 
the  duty  and  implied  contract  of  the  carriers  by  railroad,  we  think^ 
there  result  two  distinct  liabilities:  first,  that  of  common  carriers, 
and  afterwards  that  of  keepers  for  hire,  or  warehouse  keepers;  the 
obligations  of  each  of  which  are  regulated  by  law. 

We  may  then  say,  in  the  case  of  goods  transported  by  railroad, 
either  that  it  is  not  the  duty  of  the  company  as  common  carriers, 
to  deliver  the  goods  to  the  consignee,  wliich  is  more  strictly  con- 
formable to  the  truth  of  the  facts;  or,  in  analogy  to  the  old  rule  that 
delivery  is  necessary,  it  may  be  said  that  delivery  by  themselves  as 
common  carriers,  to  themselves  as  keepers  for  hire,  conformably  to 
the  agreement  of  both  parties,  is  a  delivery  which  discharges  tlieir 
responsibility  as  common  carriers.  If  they  are  chargeable  after  the 
goods  have  been  landed  and  stored,  the  liability  is  one  of  a  very 
different  character,  — one  which  binds  tliem  only  to  stand  to  losses 
occasioned  by  their  fault  or  negligence.  Indeed,  the  same  doctrine 
is  distinctly  laid  down  in  Thomas  r.  lioston  &  Trovidence  liailroad, 
10  Met.  472,  with  the  same  limitation.  The  point  that  tlie  same 
company,  under  one  and  the  same  contract,  may  be  subject  to  dis- 
tinct duties,  for  a  failure  in  which  they  may  be  liable  to  different 
degrees  of  resj)onsibility,  will  result  from  a  comparison  of  tlie  two 
cases  of  fJarside  v.  Trent  &  Mersey  Navigation,  4  T.  K.  aSl,  and 
Hydeu  Trent  &  Mersey  Navigation,  r>T.  K.  .'W>  [260].  See  also 
Van  Santvoord  v.  St.  John,  G  Hill,  laT,  and  Mcllenry  v.  Thiladel- 
phia,  Wilmington  &  Baltimore  Railroad,  4  llarring.  448. 

The  comjtany,  having  received  an  adcfpiate  comiionsation  for  the 
entire  service,  if  they  store  the  goods,  are  paid  for  tliat  service; 
they  are  depositaries  for  hire,  and  of  course  responsible  for  the 
security  and  fitness  of  the  ])lace,  and  all    jirccautions   necessary   to 


DELIVEKY   BY   CARRIER.  279 

the  safety  of  the  goods,  and  for  ordinary  care  and  attention  of  their 
servants  and  agents,  in  keeping  and  delivering  them  when  called 
for.  This  enforces  the  liability  of  common  carriers  to  the  extent  to 
which  it  has  been  uniformly  carried  by  the  common  law,  so  far  as 
the  reason  and  principle  of  the  rule  rendered  it  fit  and  applicable, 
that  is,  during  the  transit;  and  affords  a  reasonable  security  to  the 
owner  of  goods  for  their  safety,  until  actually  taken  into  his  own 
custody. 

The  principle,  thus  adopted,  is  not  new;  many  cases  might  be 
cited;  one  or  two  will  be  sufficient.  Where  a  consignee  of  goods, 
sent  by  a  common  carrier  to  London,  had  no  warehouse  of  his  own, 
but  was  accustomed  to  leave  the  goods  in  the  wagon  office,  or  ware- 
house of  the  common  carrier,  it  was  held,  that  the  transit  was  at 
an  end,  when  the  goods  were  received  and  placed  in  the  warehouse. 
Eow  V.  Pickford,  8  Taunt.  83.  Though  this  was  a  case  of  stoppage 
in  transitu,  it  decides  the  principle.  But  another  case  in  the  same 
volume  is  more  in  point.  In  re  Webb,  8  Taunt.  443.  Common  car- 
riers agreed  to  carry  wool  from  London  to  Frome,  under  a  stipula- 
tion that  when  the  consignees  had  not  room  in  their  own  store  to 
receive  it,  the  carriers,  without  additional  charge,  would  retain  it 
in  their  own  warehouse,  until  the  consignor  was  ready  to  receive  it. 
Wool  thus  carried,  and  placed  in  the  carriers'  warehouse,  was 
destroyed  by  an  accidental  fire;  it  was  held  that  the  carriers  were 
not  liable.  The  court  say  that  this  was  a  loss  which  would  fall  on 
them,  as  carriers,  if  they  were  acting  in  that  character,  but  would 
not  fall  on  them  as  warehousemen. 

This  view  of  the  law,  applicable  to  railroad  companies,  as  com- 
mon carriers  of  merchandise,  affords  a  plain,  precise,  and  practical 
rule  of  duty,  of  easy  application,  well  adapted  to  the  security  of  all 
persons  interested;  it  determines  that  they  are  responsible  as  com- 
mon carriers  until  the  goods  are  removed  from  the  cars  and  placed 
on_the  platform ;  that  if,  on  account  of  their  arrival  in  the  night,  or 
at  any  other  time,  when,  by  the  usage  and  course  of  business,  the 
doors  of  the  merchandise  depot  or  warehouse  are  closed,  or  for  any 
other  cause,  they  cannot  then  be  delivered;  or  if,  for  any  reason^ 
the  consignee  is  not  there  ready  to  receive  them, —  it  is  the  duty  of 
the  company  to  store  them  and  preserve  them  safely,  under  the 
charge  of  competent  and  careful  servants,  ready  to  be  delivered,  and 
actually  deliver  them  when  duly  called  for  by  parties  authorized 
and  entitled  to  receive  them;  and  for  the  performance  of  these _  i 
duties  after  the  goods  are  delivered  from  the_cars^_the  company  are 
liable,  as  warehousemen,  or  keepers  of  goods  for  hire.  ^ 

It  was  argued  in  the  present  case,  that  the  railroad  company  are 
responsible   as  common  carriers  of   goods,  until   they  have  given  / 
notice  to  consignees  of  the  arrival  of  goods.     The  court  are  strongly  [  \^ 
inclined  to  the  opinion,  that  in  regard  to  the  transportation  of  goods  U     **■ 
by  railroad,  as  the  business  is  generally  conducted  in  this  country,        <•#    " 


280  CARRIERS   OF   GOODS. 

this  rule  does  not  apply.  The  immediate  and  safe  storage  of  the 
goods  on  arrival,  in  warehouses  provided  by  the  railroad  company, 
and  without  additional  expense,  seems  to  be  a  substitute  better 
adapted  to  the  convenience  of  both  parties.  The  arrivals  of  goods, 
at  the  larger  places  to  which  goods  are  thus  sent,  are  so  numerous, 
frequent,  and  various  in  kind,  that  it  would  be  nearly  impossible  to 
send  special  notice  to  eacli  consignee  of  each  parcel  of  goods  or 
single  article  forwarded  by  the  trains.  We  doubt  whether  this  is 
conformable  to  usage;  but  perhaps  we  have  not  facts  enough  dis- 
closed in  this  case  to  warrant  an  opinion  on  that  question.  As  far 
as  the  facts  on  this  point  do  appear,  it  would  seem  probable  that 
persons  frequently  forwarding  goods  have  a  general  agent  who  is 
permitted  to  inspect  the  way-bills,  ascertain  what  goods  are  received 
for  his  employers,  and  take  them  as  soon  as  convenient  after  their 
arrival.  It  also  seems  to  be  the  practice  for  persons  forwarding 
goods  to  give  notice  by  letter  and  enclose  the  railroad  receii)t,  in  the 
nature  of  a  bill  of  lading,  to  a  consignee  or  agent,  to  warn  him  to 
be  ready  to  receive  them.  From  the  two  specimens  of  the  form  of 
receipt  given  by  these  companies,  produced  in  the  present  case,  we 
should  doubt  whetlier  the  name  of  any  consignee  or  agent  is  usually 
specified  in  the  receipt  and  on  the  way-bill.  The  course  seems  to 
be  to  specify  the  marks  and  numbers,  so  that  the  goods  may  l)e 
identified  by  inspection  and  comparison  with  the  way-bill.  If  it  is 
not  usual  to  specify  the  name  of  a  consignee  in  the  way-bill,  as  well 
as  on  the  receipt,  it  would  be  impossible  for  the  corporation  to  give 
notice  of  the  arrival  of  each  article  and  parcel  of  goods.  In  the  two 
receipts  produced  in  this  case,  which  are  printed  forms,  a  blank  is 
left  for  the  name  of  a  consignee,  but  it  is  not  filled,  and  no  con- 
signee in  either  case  is  named.  The  legal  ett'ect  of  such  a  receipt 
and  promise  to  deliver  no  doul)t  is  to  deliver  to  the  consignor  or  his 
order.  If  this  is  the  usual  or  frequent  course,  it  is  manifest  that  it 
would  be  impossible  to  give  notice  to  any  consignee;  the  consignor 
is  prima  furie  the  party  to  receive,  and  he  has  all  the  notice  lie  can 
liave.  But  we  have  thouglit  it  unnecessary  to  give  a  more  decisive 
opinion  on  this  point,  for  the  reason,  already  apparent,  that  in  these 
receipts  no  consignee  was  named;  and  for  another,  equally  con- 
clusive, that  Ames,  the  plaintiffs'  authorized  agent,  had  actual 
ncjtice  of  the  arrival  of  both  jiarcels  of  goods. 

In  applying  these  rules  to  the  jjresent  case  it  is  manifest  tliat  tlie 
defendants  are  not  liable  for  the  loss  of  the  goods.  Those  which 
were  forwarded  on  Saturday  arrived  in  the  course  of  that  day,  l.iy 
tliere  on  Sunday  and  Monday,  and  wore  destroyed  in  the  niglit 
))etwp('n  Monday  and  Tuesday.  l»ut  tin'  h-ngtli  of  time  makes  no 
difference.  Tlu;  goods  forwarded  on  Monday  were  unla<lt'n  from 
the  cars,  and  placed  in  tlie  depot,  before  the  fire.  Several  circiiiii- 
Ktances  are  stated  in  the  case,  as  to  the  agent's  calling  for  them, 
waiting,  and  at  last  leaving  the  depot  before  they  wore  ready.      I'ut 


DELIVERY   BY   CAERIER.  2S1 

we  consider  them  all  immaterial.  The  argument  strongly  urged 
was,  that  the  responsibility  of  common  carriers  remained  until  the 
agent  of  the  consignee  had  an  opportunity  to  take  them  and  remove 
them.  But  we  think  the  rule  is  otherwise.  It  is  stated,  as  a  cir- 
cumstance,  that  the  train  arrived  that  day  at  a  later  hour  than  usual. 
This  we  think  immaterial ;  the  corporation  do  not  stipulate  that  the 
goods  shall  arrive  at  any  particular  time.  Further,  from  the  very 
necessity  of  the  case  and  the  exigencies  of  the  railroad,  the  corpora, 
tion  must  often  avail  themselves  of  the  night,  when  the  road  is  less 
occupied,  for  passenger  cars ;  so  that  goods  may  arrive  and  be  un- 
laden at  an  unsuitable  hour  of  the  night  to  have  the  depot  open  for 
the  delivery  of  the  goods.  We  think,  therefore,  that  it  would  be 
alike  contrary  to  the  contract  of  the  parties  and  the  nature  of  the 
carriers'  duty,  to  hold  that  they  shall  be  responsible  as  common 
carriers,  until  the  owner  has  practically  an  opportunity  to  come  with 
his  wagon  and  take  the  goods;  and  it  would  greatly  mar  the  sim- 
plicity  and  eflacacy  of  the  rule,  that  delivery  from  the  cars  into  the 
depot  terminates  the  transit.  If,  therefore,  for  any  cause,  the  con- 
signee is  not  at  the  place  to  receive  his  goods  from  the  car  as 
unladen,  and  in  consequence  of  this  they  are  placed  in  the  depot, 
the  transit  ceases.  In  point  of  fact,  the  agent  might  have  received 
the  second  parcel  of  goods  in  the  course  of  the  afternoon  on  Monday, 
but  not  early  enough  to  be  carried  to  the  warehouses  at  which  he 
was  to  deliver  them;  that  is,  not  early  enough  to  suit  his  conven- 
ience. But,  for  the  reasons  stated,  we  have  thought  this  circum- 
stance immaterial,  and  do  not  place  our  decision  for  the  defendants, 
in  regard  to  this  second  parcel,  on  that  ground. 

Judrjvient  for  the  defendants. 


THE   L.   L.   &   G.    EAILROAD   CO.   v.   MARIS. 
16  Kan.  333.     1876. 

The  opinion  contains  a  full  statement  of  the  facts  and  questions 
in  this  case.  Maris,  as  j^laintiff,  recovered  judgment  at  the  April 
Term,  1874,  of  the  District  Court  against  the  Railroad  Company,  for 
$208.25  and  costs,  and  the  Railroad  Company  brings  the  case  here 
on  error. 

Brewer,  J.  This  was  an  action  brought  by  defendant  in  error  to 
recover  for  goods  destroyed  by  fire  in  a  depot  belonging  to  the  plain- 
tiff in  error,  and  the  question  is,  whether  the  company  at  the  time 
of  the  fire  occupied  toward  the  goods  the  position  of  carrier,  or  that 
of  warehouseman.  The  case  was  tried  upon  an  agreed  statement  of 
facts.     It  is  not  contended  that  the  fire  was  caused  by  the  negli- 


282  CARRIERS    OF    GOODS. 

gence  of  the  company,  or  tliat  if  its  liability  as  carrier  had  termi- 
nated, it  was  responsible  for  the  loss.  The  material  facts  are  these: 
Maris  was  a  merchant  at  Wintield,  a  place  about  ninety  miles  west 
of  Independence,  a  point  on  the  company's  road.  Goods  were 
shipped  to  him  over  the  company's  road,  to  be  delivered  to  him  at 
Independence.  Th«  goods  in  question  reached  Independence  on  the 
4tli  and  7th  days  of  January,  1872,  and  were  placed  in  the  depot 
building,  and  there  remained  eight  days  (until  the  loth  of  January), 
and  were  then  consumed  by  fire.  Immediately  after  the  arrival  of 
each  consignment  of  goods  at  Independence,  notice  thereof  was  for- 
warded by  mail  to  Maris  at  "Wintield,  but  did  not  reach  him  until 
the  20th  of  January,  and  after  the  fire.  A  tri-weekly  mail  ran 
between  the  two  places.  Ordinarily, *only  two  days  were  occupied 
ill  transmitting  the  mail.  During  that  month  the  epizooty  was  pre- 
vailing among  the  horses  in  that  section  of  the  country,  and,  owing 
to  that  or  some  other  cause  over  which  neither  party  had  any  control, 
the  notice  did  not  reach  ]\Iaris  until  the  20th.  He  called  every  day 
at  tlie  post-otlice  in  Winfield  for  his  mail.  The  only  means  of  con- 
veying goods  from  Independence  to  Winfield  was  l)y  wagon,  and 
under  favorable  circumstances  the  trip  from  Winfield  to  Indepen- 
dence took  from  three  to  five  days,  and  the  round  trip  six  to  ten 
days.  By  special  agreement  between  the  parties,  notice  was  to  be 
given  Maris  by  mail  of  tlie  arrival  of  the  goods  at  Independence. 
The  form  of  the  notice  given  (and  Maris  had,  prior  to  the  1st  of 
January,  1872,  received  similar  notices  of  the  arrival  of  other 
goods)  was  as  follows:  — 

Freight  Office,  L.  L.  &  G.  R.  R.  Line, 

IXDKPKNDENCE,  ,   1S7 — . 

^f : 

There  this  day  arrived  at  our  depot  at ,  consigned  to  you,  the 

following  articles  : 

iVo.  I  Articles.  ||  No.  \  Articles. 

EXniIJIT    A. 

Weifjht,  Chttrrjr,  I? 

winch  are  ready  for  delivery  to  you  on  payment  of  freight  and  charges. 

N.  B. — No  goods  delivered  until  all  charges  thereon  are  paid.  Storage 
will  be  charged  in  all  cases  where  goods  are  not  removed  within  the  pre- 
scribed time. 

The  contract  of  this  company  as  commnn  rnrrvrs  ends  upon  the  arrival  of  gooils 
at  our  (Ifjjots,  and  the  company  will  not  be  responsible  for  daniape  from  ordi- 
nary leakage,  breakage,  or  iiisuiricicnt  cooperage  -,  and  no  claim  for  damai^cs 
will  be  allowed  after  the  goods  have  left  the  deinat,  unless  by  consent  of  the 
agent. 

(Joods  will  be  delivered  only  to  the  owner,  or  his  written  order.     A  rect'ij)t 

for  goods  will,  in  all  casos,  be  required,  and  no  claim  will  be  entertained  for 

goods  lost  after  such  receipt  has  been  takin. 

Ageut. 

Upon  these  facts  some  questions  of  importance  are  presented.  It 
is  insisted  on  behalf  of  tlie  comiany,  in  tlio  first  j.lacr,  "that  a  com- 


DELIVERY   BY   CARRIER.  283 

mon  carrier  is  relieved  of  its  extraordinary  liability  as  an  insurer 
whenever  it  has  carried  the  goods  intrusted  to  its  safety,  and  depos- 
ited them  in  a  safe  warehouse."  This  question  as  to  the  period  at 
which  the  carrier's  extraordinary  liability  terminates,  comes  to  us 
borne  upon  two  opposing  lines  of  decision.  At  the  head  of  one  line 
stands  the  case  of  the  Norway  Plains  Company  v.  B.  &  M.  Rid.  Co., 

1  Gray,  263,  in  which  the  great  jurist  of  Massachusetts,  C.  J.  Shaw, 
holds  that  this  liability  of  the  carrier  terminates  when  the  goods  are! 
unloaded  at  their  place  of  destination,  and  are  ready  for  removal  by 
the  consignee ;  that  if  the  latter  be  not  present  to  receive  them,  and 
they  are  kept  by  the  company  in  its  depot  or  warehouse,  its  liability 
is  that  of  a  warehouseman.  In  other  words,  this  liability  continues 
only  during  the  actual  transit,  and  that  when  this  is  ended,  if  the^ 
consignee  does  not  immediately  receive  them,  the  company,  as  car 
rier,  delivers  them  to  the  company  as  warehouseman,  and  thereafter 
the  company  is  liable  only  for  loss  resulting  from  actual  negligence. 
At  the  head  of  the  other  line  is  the  case  of  Moses  v.  B.  &  M.  Rly. 
Co.,  32  Xew  Hamp.,  523,  in  which  the  court  decides  that  the  car- 
rier's liability  continues  after  the  termination  of  the  actual  transit, 
and  until  the  consignee  has  a  reasonable  time  to  remove  the  goods ; 
that,  as  the  carrier's  liability  commences,  not  with  the  actual  transit 
of  goods,  but  from  the  time  of  receipt  from  consignor,  so  it  con- 
tinues until  actual  delivery  to  the  consignee,  or,  what  is  equivalent 
to  a  delivery,  until  the  consignee  has  had  reasonable  time  after  their 
arrival  to  inspect  and  take  them  away  in  the  common  course  of  busi- 
ness. The  mere  fact  that  either  before  or  after  the  actual  transit 
they  are  placed  by  the  company  in  its  depot  or  warehouse  does  not 
change  the  character  of  its  liability.  The  following  cases  support 
the  Massachusetts  doctrine:  McCarty  v.  N.  Y.  &  Erie  Rid.  Co.,  30 
Penn.  St.  253;  Francis  v.  Dubuque  &  S.  C.  Rid.  Co.,  25  Iowa,  60; 
Bauserman  v.  T.  W.  &  W.  Rly.  Co.,  25  Ind.  434;  C.  &  C.  Air  Line 
Rid.  Co.  V.  McCool,  26  Ind.  140;  C.  &  A.  Rid.  Co.  v.  Scott,  42  111. 
133.  The  other  doctrine  is  adopted  in  the  following  cases :  Fenner  v. 
B.  &  St.  L.  Rid.  Co.,  44  X.  Y.  505;  Zum  v.  New  Jersey  St.  Co.,  49 
N.  Y.  442;  Wood  v.  Crocker,  18  Wis.  345;  Derosia  v.  St.  P.  &  W. 
Rid.  Co.,  18  Minn.  1.33;  Morris  &  Essex  Rid.  Co.  v.  Ayres,  5  Dutch. 
393;  Blumenthall  v.  Brainard,  38  Vt.  413;  McMillan  v.  M.  S.  & 
N.  J.  Rid.  Co.,  16  Mich.  79;  Jeffersonville  Rid.  Co.   v.  Cleveland, 

2  Bush,  468;  Hilliard  v.  Wilmington  &  C.  Rid.  Co.,  6  Jones  (Law), 
343.  The  question  is  a  new  one  in  this  State,  and  one  of  no  small 
importance  both  to  carriers  and  shippers.  Notwithstanding  there 
is  a  technical  precision  in  the  Massachusetts  doctrine  which  makes 
it  both  capable  of  exact  statement  and  easy  of  application,  we  think 
the  other  doctrine  more  just  and  reasonable  in  its  application  to  the 
ordinary  transactions  of  business,  protecting  both  the  shipper  and 
the  carrier.  It  extends  a  little  the  duration  of  the  carrier's  obliga- 
tion, but  only  so  far  as  it  seems  necessary  to  protect  the  shipper. 


2S4  CARRIERS   OF   GOODS. 

The  goods  remain  in  the  custody  of  the  carrier,  and  subject  to  his 
control.  The  exact  moment  of  arrival  can  seldom  be  known  to  the 
consignee,  even  if  he  have  notice  of  the  shipment.  It  is  unreason- 
able to  compel  him  to  remain  at  the  depot  of  the  carrier,  waiting 
the  arrival  of  the  goods,  or  assume  all  the  risks  of  the  uncertainties 
in  the  delay  of  transportation  and  time  of  arrival.  "We  therefore 
^old  that  the  carrier's  liability  continues  until  the  consignee  has 
had  a  reasonable  time  to  call  for,  examine,  and  removejthe  goods. 

What  is  a  reasonable  time?     This  is  not  a  time  varying  with  the 
distance,  convenience,  or  necessities  of  the  consignee,  but  it  is  such 
time  as  will  enable  one  living  in  the  vicinity  of  the  place  of  delivery, 
in  the  ordinary  course  of  business,  and  in  the  usual  hours  of  busi- 
ness, to  inspect  and  remove  the  goods.     It  is  well  said  by  the  court 
in  the  case  from  18  Minn.  133,  that,  "What  would  be,  under  the  cir- 
I  cumstances  of  the  case,  such  reasonable  time  for  the  removal  of  the 
goods,  is  not  to  be  measured  by  any  peculiar  circumstances  in  the 
condition  or  situation  of  the  consignee,  or  plaintiff,  which  render 
it  necessary  for  his  convenience  or  accommodation  that  he  should 
have  longer  time  or  better  opportunity  than  if  he  resided  in  the 
vicinity  of  the  depot,  and  was  prepared  with  means  and  facilities 
\  of  removing  them;  but  what  is  meant  by  reasonable  time  is  such  as 
would  give  a  person  residing  in  the  vicinity  of  the  place  of  delivery, 
informed  of  the  usual  course  of  business  on  the  part  of  the  company, 
:  a  suitable  o])portunity,  within  the  usual  business  hours,   after  the 
I  goods  are  ready  for  deliver}-,  to  come  to  the  place  of  delivery,  inspect 
V  the  goods,  and  take  them  away."     Tried  by  this  rule,  it  is  plain  that 
the  goods  had  remained  in  the  depot  at  Independence  more  than  a 
reasonable  time  for  their    inspection   and    removal.     Tliey  should 
have  been  removed  on  the  day  of  tlieir  arrival,  or,  at  the  furtherest, 
during  the  business  hours  of  the  succeeding  day. 

It  is  insisted,  however,  that  notice  was  required  of  their  arrival, 
and  that  no  notice  was  received  until  after  the  destruction.  Whether, 
independent  of  the  s])ecial  contract,  aiiy  notice  wms  requisite  may 
be  doubted.  The  consignee  did  not  live  at  or  near  tlie  place  of 
delivery,  and  tlie  authorities  are  conflicting  upon  the  question 
whether  notice  is  requisite  even  when  the  consignee  lives  at  the 
jilace  of  delivery.  See  upon  the  question  of  notice,  ^IcDnnald  r.  W. 
lild.  Co.,  34  N.  Y.  497;  Kenner  v.  Huffalo  &  St.  L.  Hid.  C(...  44 
N.  Y.  505;  I'rice  v.  VoweU,  3  N.  Y.  322;  C.  &  A.  Kid.  Co.  v.  Sott, 
•12  111.  133;  Derosia  v.  St.  1'.  &  W.  Rid.  Co.,  IS  Minn.  133; 
McMillan  v.  M.  S.  &  N.  J.  Hid.  Co.,  10  Mich.  71);  Milliard  v.  W. 
&  C.  Rid.  Co.,  6  Jones  (Law),  .313.  Rut  whether  notice  independ- 
ent of  any  special  contract  would  have  Ijcen  rcriuisite,  nt'»'d  not  be 
(hteriiiined,  for  here  the  parties  had  stipulated  for  notice.  And  the 
que.stion  is,  what  effect  did  thi.s  notice  have  ujjon  the  company's 
liability?  On  the  one  hand,  it  is  claimed  that  the  reasonable  time 
in  which  to  removo  the  goods  dates  from  the  rcceijjt  of  the  notice 


DELIVERY   BY   CAERIER.  285 

instead  of  the  arrival  of  the  goods;  on  the  other,  that  the  notice  was 
purely  a  favor  to  the  consignee,  and  that  specifying  the  time  at 
which  the  carrier's  liability  was  to  cease,  it  cannot  be  construed  as 
enlarging  that  time.  The  question  is  one  of  difficulty.  In  those 
States  where  notice  of  the  arrival  of  the  goods  is  required  to  ter- 
minate the  carrier's  liability,  it  is  held  that  the  reasonable  time  for 
removal  dates  from  the  giving  of  the  notice.  This  seems  necessary 
to  make  the  notice  of  any  value,  for  if  the  reasonable  time  com- 
mences with  the  arrival  of  the  goods  it  might  often  expire  before 
the  receipt  of  notice.  It  would  almost  invariably  so  expire  if  the 
consignee  lived  elsewhere  than  at  the  place  of  delivery.  Hence,  the 
notice  would  be  meaningless,  as  affecting  the  rights  and  liabilities 
of  either  party.  On  the  other  hand,  the  form  of  notice  used  by  the 
company,  and  of  which  Maris  had  information  by  the  receipt  of  such 
notices,  attempts  to  limit  the  effect  thereof,  and  plainly  states  that 
the  company's  liability  as  carrier  is  to  terminate  upon  the  arrival 
of  the  goods.  Hence,  Maris  had  knowledge  that  while  the  company 
had  agreed  to  give  and  would  give  notice  of  the  arrival,  it  did  so 
only  as  a  favor  to  him,  and  without  extending  the  duration  of  its 
extraordinary  liability.  If  Maris  was  unwilling  to  continue  the 
shipment  of  goods  under  svich  conditions,  he  was  at  liberty  to  stop. 
Continuing,  he  accepts  the  conditions.  To  this  he  replied  that,  con- 
tracting for  notice  without  any  stipulation  as  to  the  forms  and  con- 
ditions of  notice  carries  with  it  all  the  rights  which  flow  from  the 
mere  fact  of  notice,  and  that  the  company  cannot  thereafter  limit 
those  rights  by  attaching  conditions  to  that  notice.  This  would 
doubtless  be  a  satisfactory  reply  if  this  were  the  first  consignment 
and  the  first  notice.  But  having  received  notices  with  similar  con- 
ditions, and  making  no  objection  thereto,  or  seeking  a  new  arrange- 
ment, it  seems  to  us  that  he  cannot  insist  upon  rights  other  than 
those  given  by  the  form  of  notice  actually  used.  It  must  be  borne 
in  mind  that  this  is  not  an  attempt  by  the  company  to  restrict  its 
liability,  but  an  attempt  by  special  contract  to  enlarge  it;  and 
before  the  company  could  be  bound  by  such  special  contract  it 
should  be  made  clear  that  it  had  assented  to  it  in  full,  as  claimed. 
It  is  not  pretended  that  the  company  had  ever  given  any  notice 
otherwise  than  with  the  conditions  attached  to  this;  nor  is  it 
claimed  the  company  would  not  be  liable  for  any  injuries  resulting 
from  its  own  negligence;  so  that  its  interpretation  of  its  contract 
for  notice  —  an  interpretation  accepted  by  Maris  without  objection 
—  was  that  of  an  agreement  to  give  information  of  the  arrival  of  the 
goods  without,  in  the  mean  time,  assuming  any  additional  liability. 
We  are  aware  that  the  agreed  statement  shows  that  the  first  notice 
was  only  received  Dec.  23d,  1871,  and  that,  owing  to  the  sickness 
of  one  party  employed,  as  well  as  the  prevalence  of  the  epizooty. 
Maris  failed  to  get  a  team  to  Independence  before  the  destruction 
of  all  the  goods  of  the  various  consignments  by  fire  on  January 


286  CAKRIEUS   OF    GOODS. 

loth,  1872.  But  we  fail  to  see  anything  which  shows  that  IMaris 
was  unable  to  communicate  by  mail  with  the  company,  or  to  go  him- 
self, or  send  some  one  to  Independence  to  make  a  new  arrangement, 
or  stop  the  shipment,  or  receive  and  store  the  goods.  Under  these 
facts,  thouf'h  with  some  doubts,  we  are  constrained  to  hold  that  the 
company's  liability  as  carrier  had  terminated  before  the  tire,  and 
that  therefore  it  was   not  responsible  for   the  destruction  of  the 

goods. 

The  case  having  been  tried  upon  an  agreed  statement  of  facts,  the 
judgment  will  be  reversed,  and  the  case  remanded  with  instructions 
to  enter  judgment  in  favor  of  the  plaiutiif  iu  error,  defendant  below. 


FAULKNER    v.    HART. 
82  N.  Y.  413.     isso. 

Appkal  from  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  in  favor  of  defendants,  entered  upon  a  ease 
submitted  under  1279  of  the  Code  of  Civil  Procedure.  (Reported 
below,  12  J.  &  S.  471.) 

The  question  submitted  was  as  to  the  liability  of  defendants, 
common  carriers,  for  the  loss  of  certain  goods. 

Miller,  J.  The  goods,  for  the  value  of  which  the  plaintiffs 
claim  to  recover  in  this  action,  were  shipped  at  New  York,  to  be 
transported  to  and  were  consigned  to  them  at  Boston;  and  they 
were  called  for  on  the  day  of  their  arrival,  but  a  delivery  was 
refused  until  the  next  day,  because  it  was  not  convenient  for  the 
defendant  to  deliver  them.  They  were  unloaded  from  the  cars  the 
same  afternoon,  but  too  late  for  delivery,  and  were  placed  during 
the  night  of  that  day  in  the  defendant's  warehouse,  and  before  the 
plaintiffs  had  an  opportunity  to  make  another  demand  the  ware- 
liouse,  together  witli  tlie  goods,  was  destroyed  by  fire.  The  j.lain- 
tiffs  were  doing  business  botli  in  New  York  and  lioston,  and  all 
resided  in  Boston  except  one  of  them,  wlio  lived  in  New  Jersey. 
The  contract  for  transportation  of  the  goods  was  made  in  New  York, 
with  t))e  Norwich  and  New  York  Transportation  Company,  in  be- 
lialf  of  itself  and  the  connecting  carriers  to  Boston,  and  tliey  were 
to  be  conveyed  to  Boston.  The  last  i)art  of  tlie  routi;  they  were 
placed  in  cars  upon  the  road,  operated  by  the  defendants. 

The  rule  as  to  the  liability  of  carriers  under  the  facts  stated  is 
well  established  by  the  law  merchant,  and  the  authorities  are  numer- 
ous wliich  sustain  the  jKJsition  tliat  the  carrier  is  bound  to  pay  for 
the  loss  of  the  goods  destroyed.  It  is  his  duty  not  only  to  transport 
the  goods,  but  he  has  not  performed  his  entire  contract  as  a  coni^ 


DELIVERY  BY  CARRIER.  287 

mon  carrier  until  he  has  delivered  the  goods,  or  offered  to_deliver 
them  to  the  consignee,  or  Has  done  Avhat  is  equivalent,  by  giving  to 
the  consignee,  if  he  can  be  found,  due  notice  after  their  arrival,  and 
by  furnishing  him  a  reasonable  time  thereafter  to  take~charge  oF^r 
to  remove  the  same.     Gatliffe  v.  Bourne.  4  F>ing.  N.  C.   'A\X:  s.  v.. 

11  Clarke  &  Fin.  45;  Price  r.  Powell,  3  Comst.  322;  Zinn  v.  X.  J. 
St.  Co.,  49  N.  Y.  442;  Sherman  v.  Hudson  River  R.  R.  Co.,  G4  id. 
254;  The  Sultana  v.  Chapman,  5  Wis.  454;  Sleade  v.  Payne,  14 
La.  Ann.  453;  Graves  v.  H.  &  N.  Y.  St.  Co.,  38  Conn.  143;  C.  & 
E.  I.  R.  R.  V.  Warren,  16  111.  502;  Moses  v.  B.  &  M.  R.  R.,  32 
N.  H.  523;  The  Tangier,  1  Clifford,  396. 

In  view  of  the  rule  laid  down  in  the  authorities  cited,  there  would 
appear  to  be  no  serious  question  as  to  the  plaintiffs'  claim  to  recover 
for  the  value  of  the  goods  actually  destroyed.  The  right  of  the 
plaintiffs  to  recover  is  resisted,  and  exemption  for  liability  is 
claimed  by  reason  of  the  decisions  of  the  courts  of  the  State  of 
Massachusetts,  holding  adversely  to  the  rule  which  is  established 
at  common  law,  and  which,  as  we  have  seen,  has  been  generally 
adopted  and  sustained  in  this  country  and  in  England.  The  deci- 
sions of  that  State  established  that  the  proprietors  of  a  railroad, 
who  transport  goods  for  hire  and  deposit  them  in  a  warehouse  until 
the  owner  or  consignee  has  a  reasonable  time  to  take  them  away, 
are  not  liable  as  common  carriers  for  their  loss  by  fire  without  neg- 
ligence or  default  on  their  part;  that  the  railroad  corporation  ceases 
to  be  a  common  carrier,  and  becomes  a  warehouseman,  as  a  matter 
of  law,  when  it  has  completed  the  duty  of  transportation,  and  has 
assumed  the  position  of  a  warehouseman,  as  a  matter  of  fact,  and 
according  to  the  usages  and  necessities  of  the  business  in  which  it  is 
engaged.  Norway  Plains  Co.  v.  B.  &  M.  R.  R.  Co.,  1  Gray,  263  [274J ; 
Rice  V.  Hart,  118  Mass.  201.  These  decisions  are  entitled  to  the 
highest  respect;  but,  like  all  other  adjudications,  are  the  subject  of 
revisal,  limitation,  and  even  to  be  overruled  in  the  court  in  which 
they  originated.  The  same  right  exists  in  other  courts  to  consider 
and  pass  upon  the  same  question;  and  how  far  they  should  be 
allowed  to  control  their  decisions  in  a  cause  of  action  where  the  con- 
tract was  made  in  one  State,  and  performed  in  part  in  another  State 
where  the  law  has  been  decided  differently,  is  the  question  now  to 
be  determined.  It  was  long  since  held  in  this  Stnf.p.  thnt,  we  could 
not  break  in  upon  the  settled  principles  of  our  oQmmercial  law  to^ 
accommodate   them   to  those  of   any  country^    Aymar  v.  Sheldon, 

12  Wend.  439.  This  principle  is  well  established  in  regard  to 
all  contracts  of  a  commercial  character;  and  so  far  as  may  be 
practicable,  it  is  of  no  little  importance  that  the  rule  should 
be  harmonious  and  uniform.  Contracts  of  this  description  have 
been  the  subject  of  frequent  consideration  in  the  Federal  courts, 
and  the  decisions  have  been  direct  and  clear,  that  while  the 
decisions  of  local  courts  in  reference  to  matters  purely  local  in  the 


28S  CAKKIERS    OF    GOODS. 

States  are  obligatory  throughout  the  country,  they  are  not  con- 
clusive and  final  as  to  questions  of  commercial  law.  In  Swift  v. 
Tyson,  16  Peters,  19,  the  court  say:  "The  true  interpretation  and 
effect  of  contracts  and  other  instruments  of  a  commercial  nature 
are  to  be  sought,  not  in  the  decisions  of  local  tribunals,  but 
in  the  general  principles  and  doctrines  of  commercial  jurispru- 
dence. Undoubtedly  the  decisions  of  the  local  tribunals  upon  such 
subjects  are  entitled  to,  and  will  receive,  the  most  deliberate  atten- 
tion and  respect  of  this  court;  but  they  cannot  furnish  positive 
rules  or  conclusive  authority  by  which  our  own  judgments  are  to  be 
bound  up  and  governed."  In  a  recent  case,  Dates  /•.  Xat.  Bank,  100 
U.  S.  239,  the  State  court  in  Alabama  held  that  by  the  rules  of  the 
commercial  law,  one  who  receives  a  promissory  note  as  collateral 
security  for  a  pre-existing  debt  does  not  become  a  purchaser  for 
value  in  the  course  of  business,  so  as  to  cut  off  equities  which  the 
maker  may  have  against  the  payee;  and  on  appeal  it  was  held  that 
the  courts  of  the  United  States  are  not  bound  by  the  decisions  of 
the  State  courts  upon  questions  of  commercial  law.  This  principle 
has  been  repeatedly  upheld  in  other  cases.  i\Ieade  ?'.  Beale,  Taney, 
339,  3G0;  Austen  r.  Miller,  5  McLean,  153;  The  Ship  George, 
Olcott,  89;  I'ine  Grove  v.  Talcott,  19  Wall.  GG6;  Kobinson  v.  Com. 
Ins.  Co.,  3  Sumn.  220,  In  Meade  c.  Beale  (supra)  it  is  said  :  "Where 
the  State  court  does  not  decide  a  case  upon  the  particular  law  of 
the  State  or  established  usage,  but  upon  general  principles  of  com- 
mercial law,  if  it  falls  into  error,  that  erroneous  decision  is  not 
regarded  as  conclusive." 

From  the  authorities  cited  it  follows  that  if  the  higher  court  in 
the  State  of  Massachusetts  has  made  an  erroneous  decision,  wrong 
in  principle  and  contrary  to  a  well-settled  rule  of  commercial  law 
in  the  English  courts,  in  the  Supreme  Court  of  the  United  States, 
and  many  of  the  State  courts,  and  especially  adverse  to  the  decisions 
of  this  court,  it  should  not  be  followed  here;  and  it  is  not  only  the 
right,  but  the   duty  of  this  court  to  adhere  to  its  own   decisions. 

Any  other  rule  would  lead  to  confusion  in  regard  to  a  princi])le  of 
general  application;  for  if  the  doctrine  of  the  Massachusetts  Court 
is  to  prevail,  the  right  of  the  aggrieved  party  might  dejjend  upon  the 
fact  wlietlier  the  action  was  brought  in  the  Federal  or  State  court; 
and  if  tlie  action  in  this  case  had  been  brought  in  the  Circuit  Court 
of  the  United  States  for  the  State  of  Massachusetts,  the  ]ilaintiffs 
would  be  entitled  to  recover,  while  in  the  State  court  a  dilTereut 
result  would  prevail,  liichardson  *•.  Goddard,  '_'3  How.  [U.  S.]  .'iS; 
The  Tangier,  1  Clifford,  390;  Moses  /'.  li.  &  M.  IJ.  B.,  IVJ  X.  H.  ".2.'!. 
Thi.s  court  lias  tlie  same  authority  to  disregard  the  Massachusetts 
decisions,  in  a  case  invrdving  a  commercial  rpiestion,  as  that  court 
had  to  establish  a  rule  adverse  to  the  deeisions  of  this  court,  as  was 
done,  virtually,  in  the  cases  cited.  Nor  is  it  important  to  determine 
whether,    upr»n    a    reconsideration,    any  different   nile   would    have 


DELIVERY  BY  CARRIER.  289 

been  adopted.  It  is  sufficient  to  say  that  in  reference  to  a  law  not 
of  a  single  State,  but  affecting  the  commerce  of  the  world,  the  deci- 
sions of  the  courts  of  such  State  are  not  obligatory  upon  the  courts 
of  other  States  or  countries. 

The  learned  counsel  for  the  respondents  argues  that,  as  the 
delivery  of  the  goods  was  to  be  made  in  Boston,  where  they  were 
destroyed,  the  law  of  Massachusetts  should  control  in  respect  to 
such  delivery;  and  we  are  referred  to  several  decisions  which,  it  is 
claimed,  sustain  this  doctrine.  Barter  v.  Wheeler,  49  N.  H.  9; 
Gray  v.  Jackson,  51  id.  9;  Knowlton  v.  Erie  Railway  Co.,  19  Ohio 
St.  260;  M.  &  St.  P.  R.  Co.  v.  Smith,  7  Chicago  Leg.  News,  174. 
"While  these  cases  uphold  the  general  principle,  that  where  the  con- 
tract  is  to  be  performed  .^J^tl^j^n  one  country  and  partly  in  another 
country,  each  portion  is  to  be  interpreted  according  to  the  laws  of 
the  country  where  it  is  to  be  performed,  —  a  rule  which  is  ^uTIy^ 
sustained  by  authority  (see  Story  on  Cont.,  §  Qoo\  Pope  v.  Nicker- 
son,  3  Story,  474,  485;  Scudder  v.  Union  Nat.  Bank,  1  Otto,  413; 
Pomeroy  v.  Ainsworth,  22  Barb.  118),  none  of  them  hold  that  where 
a  great  principle  of  commercial  law  has  been  established,  which  is 
universally  acknowledged  and  acquiesced  in,  that  the  law  announced 
by  the  courts  of  a  single  State  can_ovei'turn  that  principle  and  con- 
trol the  decisions  of  the  courts  of  another  and  a  distant  State.  No 
such  question  arose  in  any  of  the  cases  cited ;  and  the  answer  to  the 
position  taken,  that  the  decision  of  the  local  courts  should  control, 
is  that  such  decisions  are  not,  under  the  circumstances,  a  correct 
interpretation  of  the  rule  of  law  in  such  a  case,  and  are  not  the 
accepted  law  of  the  land.  It  is  erroneous  and  must  fall,  for  the 
reason  that  it  cannot  be  upheld,  either  upon  principle  or  authority. 

Nor  are  any  of  the  authorities  cited  applicable  to  the  case  con- 
sidered. As  to  those  cited  from  the  State  of  New  Hampshire,  it 
may  be  remarked  that  the  precise  question  was  presented  in  Moses 
V.  B.  &  M.  R.  R.  Co.,  32  N.  H.  523,  where  the  goods  were  trans- 
ported to  Boston  and  burned  before  the  consignee  had  an  opportunity 
to  remove  them ;  and  the  authority  of  the  Massachusetts  cases  was 
repudiated,  and  it  was  said  that  by  the  rule  there  laid  down  the 
salutary  principles  of  the  common  law  are  sacrificed  to  considera- 
tions of  convenience  and  expediency,  in  the  simplicity  and  precise 
and  practical  character  of  the  rule  Avhich  it  established.  The  case 
of  Curtis  V.  D.,  L.  &  W.  R.  R.  Co.,  74  N.  Y.  116,  involved  a  ques- 
tion as  to  the  effect  of  a  local  statute  of  Pennsylvania,  limiting  the 
defendant's  liability,  upon  the  law  applicable  to  such  a  case  in  the 
State  of  New  York.  It  was  held  that  the  lex  Joel  eontractiis  did  not 
control,  the  place  of  delivery  being  a  material  and  important  part  of 
the  contract  and  in  contemplation  of  the  parties  at  the  time.  It  was 
said  that  it  was  a  reasonable  inference  that  it  was  entered  into  with 
reference  to  the  laws  of  the  place  where  delivered.  The  case  last 
cited  did  not  involve  any  such  question  as  is  here  presented,  as  there 

19 


290  CARFJEIiS    OF   GOODS. 

was  no  conflict  in  reference  to  the  decisions  of  the  courts,  and  no 
question  made  as  to  any  general  rule  of  commercial  la\v  being 
involved,  as  is  the  case  here. 

If  there  had  been  a  positive  statute  of  the  State  of  Massachusetts 
providing  that  the  carrier's  liability  should  cease  Avhen  the  goods 
had  been  deposited  at  the  end  of  the  route  in  a  suitable  warehouse, 
a  different  question  -would  arise,  and  it  might  well  be  contended 
that,  as  the  question  arose  under  the  statute  of  that  State,  the  ques- 
tion of  liability  would  depend  upon  the  construction  placed  upon 
such  statute  by  the  court  in  Massachusetts,  in  accordance  with  the 
decisions  of  the  court  of  this  State  and  the  Supreme  Court  of  the 
United  States.  Jessup  r.  Carnegie,  80  N.  Y.  441;  Mills  v.  M.  C. 
R.  R.  Co.,  45  id.  626;  Whitford  v.  Panama  R.  R.  Co.,  23  id.  4G5; 
Elmendorf  v.  Taylor,  10  Wheat.  152;  Shelby  v.  Guy,  11  id.  367; 
Town  of  Ottawa  i-.  Perkins,  94  U.  S.  260;  Fairfield  v.  County  of 
Gallatin,  MS.  Op.  U.  S.  Sup.  Ct.  But  no  such  question  arises  in 
the  case  at  bar.  So,  also,  if  the  ^Massachusetts  cases  were  decisive 
as  to  the  law  upon  the  question  considered,  it  might  well  be  urged 
that  the  plaintiff  entered  into  the  contract  having  them  in  view. 
But,  as  we  have  seen,  they  are  not  conclusive,  and  the  real  point  is, 
what  is  the  common-law  rule?  And  the  courts  of  jNlassachusetts 
having  decided  one  way,  and  the  courts  of  the  United  States  and  of 
this  State,  as  well  as  those  of  other  States  and  countries,  differently, 
it  is  open,  in  a  case  arising  in  the  courts  of  this  State,  to  determine 
the  true  rule.  It  is  the  same  subject,  and  involves  the  precise  point, 
whether  the  common  law  shall  prevail,  and  whether  the  decision  of 
the  State  court  is  erroneous.  The  question  is  not  as  to  the  applica- 
tion of  a  local  statute  or  a  local  law,  but  one  of  a  comprehensive 
character,  affecting  a  general  rule  applicable  to  all  contracts  of  the 
nature  of  the  one  now  involved. 

The  fact  that  the  defendants  were  not  carriers  between  New  York 
and  Boston,  but  only  for  a  portion  of  the  route,  and  that  they  made 
no  contract  directly  with  the  iilaintiffs,  cannot  affect  the  question  as 
to  the  lialjility  upon  the  contract  made  on  their  behalf  for  transpor- 
tation over  their  ])ortion  of  tlic  route.  As  tlie  original  contract  was 
made  in  New  York  for  a  tlnougli  transportiitif)!!,  tlie  connecting  car- 
riiT  was  cntith-d  to  all  tlic  bcm-fits  of  the  contraft.  as  well  as  to  any 
s[HM-i:il  f;xr-ini)tif'iis  it  contained.  ]\Iaglu'('  r.  C.  &  A.  K.  Iv.  Co., 
45  N.  Y.  514,  521;  Lamb  r.  The  Same,  M)  id.  271.  For  the  same 
reason  they  would  be  subject  to  all  the  obligations  incurred  thereby. 
The  contract  l)etween  the  first  carrier  and  tlic  connecting  carrier  is 
deemed  to  have  been  made  for  tlie  shipper's  benefit,  and  is  ratified 
by  bringing  the  suit.  Green  v.  Clark,  2  Kern.  343.  And  each  of 
the  connecting  lines  is  responsible  for  injuries  on  its  own  line, 
excei)t  where  there  is  an  express  eontraet  for  carriage  Iwyond  tlie 
terminus.  Condict  v.  G.  T.  R.  R.  Co.,  51  X.  V.  .-|(iO;  Koot  v.  G. 
W.  l:.  K.  Co.,  15  id.  521;  Sherman  v.  TI.  i;.  K.  K.  C..,  61   id.  260. 


DELIVERY    BY   CARRIER.  291 

The  contract,  being  made  in  New  York,  is  binding  upon  the  plain- 
tiffs, the  shippers,  and  the  defendants,  the  connecting  carriers,  so 
far  as  they  undertook  to  perform  it;  and  although  their  liability- 
arose  at  the  end  of  their  route,  yet  it  was  under  the  contract  as  made 
in  New  York. 

We  are  referred  to  a  number  of  cases  by  the  learned  counsel  for 
the  respondents,  to  sustain  the  proposition  that  the  general  obliga- 
tion created  by  the  law  of  the  place  of  delivery,  in  respect  to  the 
mode  of  delivery  by  a  carrier,  controls;  and  it  is  urged  that  when 
by  the  law  of  the  place  of  delivery  the  carrier  had  a  right  to  store 
the  goods,  the  nature  of  the  bailment  is  changed,  and  the  carrier  is 
relieved  from  the  responsibility  originally  assumed,  and  the  liability 
of  a  warehouseman  is  substituted.  We  do  not  deem  it  necessary  to 
controvert  the  correctness  of  the  rule  laid  down,  where  it  does  not 
interfere  with  the  general  principles  and  doctrines  of  commercial 
jurisprudence ;  but  there  is  no  case  cited  which  holds  that  the  court 
of  another  State,  where  an  action  is  pending,  may  not  adhere  to  its 
own  rules  and  disregard  the  decision  of  a  State  which  overrules  a 
great  principle.  As  we  have  seen,  the  United  States  Supreme  Court 
have  refused  to  sustain  the  decisions  of  the  State  court  when  vio- 
lating a  great  principle ;  and  the  rule  is  a  sound  one  which  upholds 
the  position  that  the  decisions  of  the  State  court  should  not  he  fol- 
lowed to  such  an  extent  as  to  make  a  sacrifice  of  truth,  justice,  and 
law.  Gelpcke  v.  Dubuque,  1  Wall.  175,  205;  Olcott  v.  Supervisors, 
16  id.  678.  It  is  upon  a  principle  of  comity,  that  one  State  recog- 
nizes and  admits  the  operation  of  the  laws  of  another  State  within 
its  own  jurisdiction,  where  such  law  is  not  contrary  to  its  own 
rules  of  policy,  or  to  abstract  right,  or  the  promotion  of  justice  and 
morality;  but  this  principle  should  never  be  carried  to  the  extent  of 
holding  that  a  suitor  in  its  courts  is  debarred  from  the  maintenance 
of  his  just  rights  according  to  its  well-established  decisions  and 
laws,  and  the  general  principles  of  the  common  law  which  it  has 
fully  recognized  and  which  are  almost  universally  regarded  and 
accepted,  in  reference  to  the  question  presented,  wherever  the  com- 
mon law  prevails.  No  rule  of  comity  demands  any  such  sacrifice  in 
the  business  intercourse  between  the  people  of  the  different  States, 
and  great  injustice  might  follow  by  yielding  to  such  a  principle,  and 
in  sustaining  a  rule  of  law  which  was  wrong  in  itself,  hostile  to  the 
policy  and  law  of  the  State  where  the  contract  was  made,  and  adverse 
to  the  general  current  of  authority  elsewhere.  King  v.  Sarria, 
69  N.  Y.  24. 

In  the  consideration  and  determination  of  the  case  before  us,  it  is 
worthy  of  notice  that  the  contract  made  in  New  York,  as  the  record 
shows,  was,  in  effect,  in  conformity  with  the  usual  course  of  busi- 
ness, that  the  goods  were  to  be  delivered  to  the  consignees.  In  Rice 
V.  Hart,  siqjra,  the  contract  was  merely  to  transport  to  Boston,  and 
was  silent  as  to  delivery.     It  may,  perhaps,  be  doubted  whether  the 


292  CARRIERS   OF   GOODS. 

agreement  to  deliver  to  the  plaintiffs  as  consignees  was  satisfied  by 
a  delivei-y  to  the  defendants,  especially  alter  a  demand  by  the  plain- 
tiffs and  a  refusal  to  deliver  to  them. 

If  the  shipper  was  entitled  to  the  benefit  of  a  contract  to  deliver 
the  goods  to  the  consignees  without  any  restriction,  it  is  not  entirely 
clear  that  the  rule  laid  down  in  the  Massachusetts  decisions  is 
applicable.  Without,  however,  expressing  a  decisive  opinion  upon 
the  question  last  discussed,  for  the  reasons  already  apparent,  the 
rule  adopted  in  the  ^lassachusetts  cases  cannot  be  sustained.  It 
should  not  be  overlooked  that  the  point  presented  does  not  involve 
solely  a  question  as  to  a  local  law,  but  part  of  a  system  of  general 
commercial  law.  That  the  court  in  Massachusetts  had  decided  the 
law  contrary  to  what  it  was  is  not  controlling;  for  it  maybe  assumed, 
even  if  the  parties  had  knowledge  of  the  decision,  that  they  knew 
it  was  contrary  to  the  current  of  authority  in  similar  cases,  and  con- 
tracted, having  in  view  the  law  as  it  actually  existed.  Like  an 
unconstitutional  law,  void  of  itself,  the  decision  was  not  the  law, 
and  is  not  to  be  regarded  as  authority  for  that  reason. 

The  judgment  should  be  reversed,  and  judgment  should  be  ren- 
dered in  favor  of  the  plaintiffs  for  $6,150.05,  with  interest  from 
November  7,  1872,  with  costs. ^ 


OUIMIT   V.    HEXSHAW. 
35  Vt.  005.    1SC3. 

Alois,  J 

AVe  tliink  it  is  the  true  rule  of  the  law  as  to  baggage  that 
has  reached  its  final  destination^  that  the  railroad  compjuij  must, 
upon  its  arrival,  have  it  ready  for  delivery  upon  the  ])latform 
at  the  usual  idace  of  dflivery.  until  the  owner  can,  in  the  use 
of  tlue  diligence,  call  for  and  rpcgivc  it;  and  tliat  the  owner 
nuist  call  f«jr  it  witltin  a  reasonable  time,  and  must  use  diligence 
in  calling  for  ami  removing  it.  If  the  owner  does  not  within  a 
reasonal;le  time,  and  in  the  exercise  of  diligence,  call  for  the  bag- 
gage,  tht;n  the  company  slK)uld_  put  it  in  tlieir  baggage-room_iind 
Iceep  it  for  him,  and  tlKM£Justodx_of_it  then  is  only  that_of_ ware- 
housemen; and  they  are  discharyed  from  liability  as  carriers  as  soon 
as  ' '  '  '  j.t  it  ready  for  delivery  a  reasonable  time,  and  it  has 
TV  :  J[or.     Wliere  trains  arrive  at  such  liours  that  it  is 

the  usual  course  of  business  at  the  station  to  immediately  deliver 
the  baggage,  and  for  jiasscngers  to  immediately  receive  it,  there  the 
reasonable  time  for  which  the  company  should  have  it  ready  for 
»  Ace.:  Lake  Eric  &  W.  U.  Co.  v.  Hotch  (Ohio),  39  .N.  K.  K.  1012. 


DELIVERY    BY   CARRIER.  293 

delivery,  must  be  limited  and  governed  by  the  practice  and  custom 
of  immediate  delivery ;  and  in  such  cases  reasonable  time  and  imme- 
diate delivery  go  hand  in  hand,  and  "  reasonable  time  "  cannot  extend 
the  delivery  to  another  day  or  another  occasion.  '  We  believe  it  to 
be  the  usual  custom  to  deliver  and  receive  baggage  not  only  during 
what  is  called  the  business  hours  of  the  day,  but  upon  the  arrival 
of  trains  in  the  night,  and  at  almost  any  hour  of  the  night.  The 
traveller  is  rarely  willing,  after  arriving  at  his  destination,  to  leave 
his  baggage  at  a  railroad  depot,  and  the  railroad  companies  are 
usually  desirous  to  despatch  business,  and  be  relieved  from  their 
responsibility.  Hence  immediate  delivery  is  the  rule  as  to  the  bag- 
gage; and  the  rule  that  has  been  applied  to  the  receipt  of  freight, 
that  it  should  arrive  during  the  usual  hours  of  business,  and  so  that 
the  consignee  may  have  an  opportunity  during  the  hours  of  business 
to  see  and  receive  it,  does  not  apply  to  baggage,  which  usually 
accompanies  the  traveller,  and  is  required  by  him  on  arrival. 

The  rule  is  thus  expressed  by  Mr.  Angell,  in  his  work  on  the  law 
of  carriers,  sec.  114 :  "  The  arrival  with  the  baggage  in  safety  at  the 
place  of  destination  will  not  discharge  the  carrier  until  its  delivery 
to  the  owner;  although,  unless  demanded  in  a  reasonable  time,  the 
liability  of  the  carrier,  in  his  strict  character  of  a  common  carrier, 
will  not  continue.  No  passenger  is  required,  however,  to  expose 
his  person  in  a  crowd,  or  endanger  his  safety  in  the  attempt  to 
designate  and  claim  his  baggage." 

In  Pierce  on  Railroad  Law,  p.  499,  it  is  said:  "The  liability  of 
the  company  as  a  common  carrier  ceases  when  the  passenger  has  had 
a  reasonable  opportunity  after  the  arrival  to  receive  his  baggage; 
and  if  it  remains  in  its  custody  after  that,  the  company  will  be 
liable  only  as  bailee  for  hire  or  gratuitously,  according  to  circum- 
stances." 

Redfield  on  Railways,  speaking  of  the  liability  of  railroad  com- 
panies for  the  baggage  of  travellers,  says :  "  They  remain  liable  until 
a  full  and  unequivocal  re-delivery  to  the  owner,  and  ordinarily  to 
the  end  of  the  route ; "  and  in  a  note,  citing  Powell  v.  Myers,  says : 
•'  If  baggage  be  not  called  for  in  a  reasonable  time,  the  liability  of 
the  company  as  carrier  ceases ,  and  they  are  hoklen  only  for  ordinary 
care  as  bailees  for  hire." 


294  CARKIEKS   OF   GOODS. 

B.     Termination-  of  Liability  as  Bailee. 

a.    Delivery  to  Cunnectinrj  Carrier. 

EAILBOAD   CO.    v.    MAXUFACTL'PJXG  CO. 

IG  Wall.  (U.  S.),  318.     1S72. 

In  error  to  the  Circuit  Court  for  the  District  of  Connecticut;  the 
case  being  thus ;  — 

In  October,  1865,  at  Jackson,  a  station  on  the  Michigan  Central 
Railroad,  about  seventy-five  miles  Avest  of  Detroit,  one  Bostwick 
delivered  to  the  agent  of  the  ^lichigan  Central  liailroad  Company, 
for  transportation,  a  quantity  of  wool  consigned  to  the  ^lineral 
Springs  Manufacturing  Company,  at  Stafford,  Connecticut,  and  took 
a  receipt  for  its  carriage,  on  the  back  of  which  was  a  notice  that  all 
goods  and  merchandise  are  at  the  risk  of  the  owners  while  in  the 
warehouses  of  the  company,  unless  the  loss  or  injury  to  them  should 
happen  through  the  negligence  of  the  agents  of  the  company. 

The  receipt  and  notice  were  as  follows:  — 

"MicuiGAX  Central  Railroad  Company, 
"Jackson,  October  11th,  1865. 
"  Received   from   V.    M.   Bostwick,    as   consignor,   the   articles   marked, 
numbered,  and  weighing  as  follows  :  — 

[  Wool  described.  ] 
"To  be  transported  over  said  railroad  to  (he  depot  in  Detroit,  and  tliere  to 

be  delivered  to ,  agent,  or  order,  upon  the  payment  of  charges  thert-on, 

and  subject  to  the  rules  and  regidations  established  by  the  conii)aiiy,  a  ]iart  of 
which  notice  is  given  on  the  back  hereof.     This  receipt  is  not  transferable. 

"  IIastincs, 

"  Freight  Aycnt." 

The  notice  on  the  back  was  thus :  — 

"  The  company  will  not  be  responsible  for  dnmarjes  occasioned  hj  delai/s 
from  storms,  accidents,  or  other  cduses  .  .  .  and  all  goods  and  merchandise  will 
be  at  the  ri.sk  of  the  owners  tliereof  tvhile  in  the  cnnipani/'s  warehouses,  except 
such  loss  or  injury  as  may  arise  from  the  nefjVujence  of  the  agents  (f  the  company." 

Verbal  instructions  were  given  by  Bostwick  that  the  wool  should 
be  sent  from  Detroit  to  Buffalo,  by  lake,  in  steamboats,  which 
instructions  were  embodied  in  a  bill  of  lading  sent  with  the  wool. 
Although  there  were  several  lines  of  transportation  from  Detroit  east- 
ward by  which  the  wool  fould  liave  boen  sent,  there  was  only  one 
transportation  line  jjrojHdlcd  by  steam  on  the  lakes,  and  this  line 
was,  and  had  been  for  some  time,  unable,  in  their  regular  course  of 
business,  to  receive  and  transport  the  freiglit  wbieli  lia<l  aeeumulated 


DELIVERY   BY   CARRIER.  295 

in  large  quantities  at  the  railroad  depot  in  Detroit.  This  accumula- 
tion of  freight  there,  and  the  limited  ability  of  the  line  of  propellers 
to  receive  and  transport  it,  were  well  known  to  the  officers  of  the 
road,  but  neither  the  consignor,  consignee,  nor  the  station-master  at 
Jackson  were  informed  on  this  subject.  The  wool  was  carried  over 
the  road  to  the  depot  in  Detroit,  and  remained  there  for  a  period  of 
six  days,  when  it  was  destroyed  by  an  accidental  fire,  not  the  result 
of  any  negligence  on  the  company's  part.  During  all  the  time  the 
wool  was  in  the  depot  it  was  ready  to  be  delivered  for  further  trans- 
portation to  the  carrier  upon  the  route  indicated. 

In  consequence  of  the  loss  the  manufacturing  company  sued  the 
railroad  company.  The  charter  of  the  company,  which  was  pleaded 
and  offered  in  evidence,  contained  a  section  thus :  — 

"The  said  company  may  charge  and  collect  a  reasonable  sum  for\ 
storage  upon  all  property  which  shall  have  been  transported  by 
them  upon  delivery  thereof  at  any  of  their  depots,  and  which  shall 
have  remained  at  any  of  their  depots  more  than  four  days;  Provided, 
that  elsewhere  than  at  their  Detroit  depot,  the  consignee  shall  have 
been  notified  if  known,  either  personally  or  by  notice  left  at  his 
place  of  business  or  residence,  or  by  notice  sent  by  mail,  of  the 
receipt  of  such  property  at  least  four  days  before  any  storage  shall 
be  charged,  and  at  the  Detroit  depot  such  notice  shall  be  given 
twenty-four  hours  (Sunday  excepted)  before  any  storage  shall  be 
charged;  but  such  storage  may  be  charged  after  the  expiration  of 
said  twenty-four  hours  upon  goods  not  taken  away,  Provided,  that 
in  all  cases  the  said  company  shall  be  responsible  for  goods  on 
deposit  in  any  of  their  depots  awaiting  delivery,  delivery  as  ware- 
housemen, and  not  as  common  carriers." 

The  controversy,  of  course,  was  as  to  the  nature  of  the  bailment 
when  the  fire  took  place.  If  the  railroad  company  were  to  be  con- 
sidered as  warehousemen  at  the  time  the  wool  was  burned,  they  were 
not  liable  in  the  action,  as  the  tire  which  caused  its  destruction  was 
not  the  result  of  any  negligence  on  their  part.  If,  on  the  contrary, 
their  duty  as  carriers  had  not  ceased  at  the  time  of  the  accident,  and 
there  were  no  circumstances  connected  with  the  transaction  which 
lessened  the  rigor  of  the  rule  applicable  to  that  employment,  they 
were  responsible;  carriers  being  substantially  insurers  of  the  prop- 
erty intrusted  to  their  care. 

The  court  was  asked  by  the  railroad  company  to  charge  the  jury 
that  its  liability  was  the  limited  one  of  a  warehouseman,  importing 
only  ordinary  care.  The  court  refused  so  to  charge,  and,  on  the 
contrary,  charged  that  the  railroad  company  were  liable  for  the 
wool  as  common  carriers,  during  its  transportation  from  Jackson  to 
Detroit,  and  after  its  arrival  there,  for  such  reasonable  time  as, 
according  to  their  usual  course  of  business,  under  the  actual  circum- 
stances in  which  they  held  the  wool,  would  enable  them  to  deliver 
it  to  the  next  carrier  in  the  line,  but  that  the  manufacturing  com- 


5^, 


296  CARRIERS   OF   GOODS. 

pany  took  the  risk  of  the  next  carrier  line  not  being  ready  and  will, 
iug  to  take  said  wool,  and  submitted  it  to  the  jury  to  say  whether 
under  all  the  circumstances  of  the  case  in  evidence  before  them  such 
reasonable  time  had  elapsed  before  the  occurrence  of  the  fire. 

The  jury,  under  the  instructions  of  the  court,  found  that  the 
railroad  company  were  chargeable  as  carriers,  and  this  writ  of  error 
was  prosecuted  to  reverse  the  decision, 

Mr.  Justice  Davis,  It  is  not  necessary  in  the  state  of  this 
record  to  go  into  the  general  subject  of  the  duty  of  carriers  in  respect 
to  goods  in  their  custody  which  have  arrived  at  their  final  destina- 
tion, Ditt'erent  views  have  been  entertained  by  different  jurists  of 
what  the  carrier  is  required  to  do  when  the  transit  is  ended,  in  order 
to  terminate  his  liability;  but  there  is  not  this  difference  of  opinion 
in  relation  to  the  rule  which  is  a])])licable  while  the  property  is  in 
progress  of  transportation  from  the  place  of  its  receipt  to  the  place 
of  its  destinatiom  ~~        ~ 

In  such  cases  it  is  the  duty  of  the  carrier,  in  the  absence  of  any 
special  contract,  to  carrv  safely  to  the  end  of  his  line  and  deliver 
to  the  next  carrier  in  the  route  beyond.  This  rule  of  liability  is 
adopted  generally  by  the  courts  in  this  country,  although  in  England, 
at  the  present  time,  and  in  some  of  the  States  of  the  Union,  the  dis- 
position is  to  treat  the  ol)ligation  of  the  carrier  who  first  receives 
the  goods  as  continuing  throughout  the  entire  route.  It  is  unfortu- 
nate for  the  interests  of  commerce  that  there  is  any  diversity  of 
opinion  on  such  a  subject,  especially  in  this  country;  but  the  rule 
that  holds  the  carrier  only  liable  to  the  extent  of  his  own  route,  and 
for  the  safe  storage  and  delivery  to  the  next  carrier,  is  in  itself  so 
just  and  reasonable  that  we  do  not  hesitate  to  give  it  our  sanction. 
Public  policy,  however,  requires  that  the  rule  should  be  enforced, 
and  will  not  allow  the  carrier  to  escape  responsibility  on  storing  the 
goods  at  the  end  of  his  route,  without  delivery  or  an  attempt  to 
deliver  to  the  connecting  carrier.  If  there  ])e  a  neccssit}'  for  storage, 
it  will  be  considered  a  mere  accessory  to  the  trans})ortation,  and  iiot 
as  changing  the  nature  of  the  bailment.  It  is  very  clear  that  the 
simple  dejjosit  of  the  goods  by  the  carrier  in  his  depot,  unaccom- 
jtanied  by  any  act  indicating  an  intention  to  renounce  tlie  obligation 
of  a  carrier,  will  not  cliange  or  modify  even  his  liability.  Liliiax 
be  tiiat  circumstances  may  arise  after  the  goods  have  rcaclu'd  the 
df]jot  which  would  justify  the  carrier  in  \yaTchouiijlgJbhemi  biitif 
'       '     '  ''       ''<.>yiy]ii_to_aiit  ■        '     the  occurrence  of  those 

s   when   he   i  t,he^4jui)dvh.u  caiinot_.by 

'  iuMii  rliiiiigr  his  relation  Lowunls  them. 

1    .;.::g  the  case^  in  liamFl/y  these  well-settled   lu-incijiles,    it  is 

apparent  tliat  the  plaintiffs  in  error  are  not  relieved  of  their  proper 

'Ipility,  unless  through  the  provisions  of  their  charter,  or  by 

..s  of  the  receipt  wliich  was  given  when  tliey  received  the 

vn)iA.     They  neither  delivered  nor  offered  to  deliver  the  wool  to  the 


DELIVERY    BY    CAriKIER.  297 

propeller  company.  Nor  did  they  do  any  act  manifesting  an  inten- 
tion to  divest  themselves  of  the  character  of  carrier  and  assume  that 
of  forwarder. 

It  is  insisted  that  the  offer  to  deliver  would  have  been  a  useless 
act,  because  of  the  inability  of  the  line  of  propellers,  with  their 
means  of  transportation,  to  receive  and  transport  the  freight  which 
had  already  accumulated  at  the  Michigan  Central  Depot  for  shipment 
by  lake.  One  answer  to  this  proposition  is,  that  the  company  liad 
no  right  to  assume,  in  discharge  of  its  obligation  to  this  defendant, 
that  an  offer  to  deliver  this  particular  shipment  would  have  been 
met  by  a  refusal  to  receive.  Apart  from  this,  how  can  the  company 
set  up,  by  way  of  defence,  this  limited  ability  of  the  propeller  line 
when  the  officers  of  the  road  knew  of  it  at  the  time  the  contract  of 
carriage  was  entered  into,  and  the  other  party  to  the  contract  had 
no  information  on  the  subject? 

It  is  said,  in  reply  to  this  objection,  that  the  company  could  not 
have  refused  to  receive  the  wool,  having  ample  means  of  carriage, 
although  it  knew  the  line  beyond  Detroit  selected  by  the  shipper 
was  not  at  the  time  in  a  situation  to  receive  and  transport  it.  It  is 
true  the  company  were  obliged  to  carry  for  all  persons,  without 
favor,  in  the  regular  course  of  business,  but  this  obligation  did  not 
dispense  with  a  corresponding  obligation  on  its  part  to  inform  the 
shipper  of  any  unavoidable  circumstances  existing  at  the  termina- 
tion of  its  own  route  in  the  way  of  a  prompt  delivery  to  the  carrier 
next  in  line.  This  is  especially  so  when,  as  in  this  case,  there  were 
other  lines  of  transportation  from  Detroit  eastward  by  which  the 
wool,  without  delay,  could  have  been  forwarded  to  its  place  of  des- 
tination. Had  the  shipper  at  Jackson  been  informed,  at  the  time, 
of  the  serious  hindrances  at  Detroit  to  the  speedy  transit  of  goods 
by  the  lake,  it  is  fair  to  infer,  as  a  reasonable  man,  he  would  have 
given  a  different  direction  to  his  property.  Common  fairness  re- 
quires that  at  least  he  should  have  been  told  of  the  condition  of 
things  there,  and  thus  left  free  to  choose,  if  he  saw  fit,  another  mode 
of  conveyance.  If  this  had  been  done  there  would  be  some  plausi- 
bility in  the  position  that  six  days  was  an  unreasonable  time  to 
require  the  railroad  company  to  hold  the  wool  as  a  common  carrier 
for  delivery.  But  under  the  circumstances  of  this  case  the  company 
had  no  right  to  expect  an  earlier  period  for  delivery,  and  cannot, 
therefore,  complain  of  the  response  of  the  jury  to  the  inc^uiry  on 
this  subject  submitted  to  them  by  the  Circuit  Court. 

It  is  earnestly  argued  that  the  plaintiffs  in  error  are  relieved  from 
liability  under  a  provision  contained  in  one  section  of  their  charter, > 
if  not  by  the  rules  of  the  common  law. 

But  it  is  quite  clear,  on  reading  the  whole  section,  that  it  refers 
to  property  which  has  reached   its  final  destination,  and  is  there 

1  See  the  section,  supra,  pp.  320-321  [295].  — Rkt. 


298  CARRIERS   OF   GOODS. 

awaiting  delivery  to  its  owner.  If  so,  how  can  the  proviso  in  ques- 
tion be  made  to  apply  to  another  and  distinct  class  of  property? 
To  perform  this  office  it  must  act  independently  of  the  rest  of  the 
section,  and  enlarge,  rather  than  limit,  the  operation  of  it.  This  it 
cannot  do,  unless  words  are  used  wliich  leave  no  doubt  the  legisla- 
ture intended  such  an  effect  to  be  given  to  it. 

It  is  argued,  however,  that  there  is  no  difference  between  goods 
to  be  delivered  to  the  owner  at  their  final  destination,  and  goods 
delivered  to  the  owner,  or  his  agent,  for  further  carriage.  That 
in  both  cases,  as  soon  as  they  are  *'  ready  to  be  delivered "  over, 
they  are  "awaiting  delivery."  This  position,  although  plausible, 
is  not  sound.  There  is  a  clear  distinction,  in  our  opinion,  between 
property  in  a  situation  to  be  delivered  over  to  the  consignee  on 
demand,  and  property  on  its  way  to  a  distant  point  to  be  taken 
thence  by  a  connecting  carrier.  In  the  former  case  it  may  be  said 
to  be  awaiting  delivery;  in  the  latter  to  be  awaiting  transporta- 
tion. And  this  distinction  is  recognized  by  the  Supreme  Court  of 
Michigan  in  the  case  of  the  present  plaintiffs  in  error  against  Hale.^ 
The  court  in  speaking  on  tliis  subject  say,  "that  goods  are  on  deposit 
in  the  depots  of  the  company,  either  awaiting  transportation  or 
awaiting  delivery,  and  that  the  section  (now  under  consideration) 
has  reference  only  to  goods  which  have  been  transported  and  placed 
in  the  company's  depots  for  delivery  to  the  consignee."  To  the 
same  effect  is  a  recent  decision  of  the  Court  of  Appeals  of  New 
York,'*  in  a  suit  brought  to  recover  for  the  loss  of  goods  by  the  same 
fire  that  consumed  the  wool  in  this  case,  and  which  were  marked  for 
conveyance  by  the  same  line  of  propellers  on  Lake  Erie. 

Judgvieiit  affirmed. 


MUSCHAMl'   V.    THE   LANCASTER   AND   PRESTON 
JT'NCTIoN   R.    CO. 

Exchequer  of  Pleas.     8  M.  &  W.  121 .     1811. 

Case.  —  The  declaration  stated,  that,  after  the  passing  of  a  cer- 
tain Act  of  Parliament,  intituled  "An  Act  for  making  and  maintain- 
ing a  Railway  from  tlu'  Town  of  Lancaster  to  the  Town  of  J'reston, 
in  the  county  I'alatinc  of  Lancaster,"  the  defendants  were  the  ])ro- 
prietors  of  a  certain  railway,  to  wit,  etc.,  and  of  certain  engines 
and  carriages  used  thereon;  and  tlie  plaintiff,  on,  etc.,  caused  to  be 
offered  and  dclivorcd  to  tl»e  defendants,  to  wit,  as  common  carriers, 
and  the  defendants  received  as  such   carriers,  a  certain   box,  and 

>  6  Michigan,  248. 

»  MitlN  V.  Michigan  Cotitml  Railroad  Co.,  \:,  N.w  York,  (526. 


DELIVERY   BY   CARRIER.  299 

divers  goods  and  chattels  contained  therein,  of  the  plaintiff,  to  be 
safely  and  securely  carried  and  conveyed  for  the  plaintiff  by  the 
defendants,  from  Lancaster  aforesaid,  upon  the  said  railway,  and 
upon  other  railways,  and  to  be  caused  by  the  defendants  to  be  left 
at  a  certain  other  place,  to  wit,  at  a  certain  place  called  the  Wheat- 
sheaf,  Bartlow,  near  Bakewell,  Derbyshire,  for  the  plaintiff,  for 
certain  reward  to  be  therefore  paid  by  the  plaintiff  to  the  defend- 
ants; yet  the  defendants  contriving,  etc.,  did  not  nor  would  convey 
the  said  box,  etc.,  upon  their  said  railway,  nor  upon  other  railways, 
or  cause  the  same  to  be  left  at  the  said  Wheatsheaf,  etc.,  for  the 
plaintiff;  but  through  the  negligence,  carelessness,  etc.,  of  the 
defendants,  the  said  box,  goods,  and  chattels  were  wholly  lost  to 
the  plaintiff. 

Pleas,  first,  not  guilty;  secondly,  that  the  plaintiff  did  not  cause 
to  be  delivered  to  the  defendants,  nor  did  the  defendants  accept  and 
receive  the  said  box,  etc.,  for  the  purpose  and  in  tJie  manner  and 
form  as  the  plaintiff  has  in  his  declaration  alleged ;  —  on  which 
issues  were  joined. 

At  the  trial  before  Rolfe,  B.,  at  the  last  assizes  at  Liverpool,  the 
following  facts  appeared  in  evidence :  —  The  defendants  are  the  pro- 
prietors of  the  Lancaster  and  Preston  Junction  Railway,  and  carry 
on  business  on  their  line  between  Lancaster  and  Preston,  as  common 
carriers.  At  Preston  the  line  joins  the  North  Union  Railway,  which 
afterwards  unites  with  the  Liverpool  and  Manchester  Railway  at 
Parkside,  and  that  with  the  Grand  Junction  Railway.  The  plain- 
tiff, a  stone-mason  living  at  Lancaster,  had  gone  into  Derbyshire  in 
search  of  work,  leaving  his  box  of  tools  to  be  sent  after  him.  His 
mother  accordingly  took  the  box  to  the  railway  station  at  Lancaster, 
directed  to  the  plaintiff,  "to  be  left  at  the  Wheatsheaf,  Bartlow, 
near  Bakewell,  Derbyshire"  (a.  place  about  eight  miles  wide  of  the 
Birmingham  and  Derby  Junction  Railway),  and  requested  the  clerk 
at  the  station  to  book  it.  In  answer  to  her  inquiries,  he  told  her 
that  the  box  would  go  in  two  or  three  days;  and  on  her  asking 
whether  it  would  go  sooner  if  the  carriage  was  paid  in  advance,  he 
inquired  whether  any  one  was  going  with  it;  on  her  answering  in 
the  negative,  and  that  the  person  for  whom  it  was  intended  would 
be  ready  at  the  other  end  to  receive  it,  he  said  the  carriage  had 
better  be  paid  for  by  that  person  on  receipt  of  it.  It  appeared 
that  the  box  arrived  safely  at  Preston,  but  was  lost  after  it  was 
despatched  from  thence  by  the  North  Union  Railway.  Upon  these 
facts  the  learned  judge  stated  to  the  jury,  in  summing  up,  that  /> 
where  a  common  carrier  takes  into  his  care  a  parcel  directed  to  a 
particular  place,  and  does  not  by  positive  agreement  limit  his 
responsibility  to  a  part  only  of  the  distance,  that  is  prima  facie  evi - 
dence  of  an  undertaking  on  his_part  to  carry  the  parcel  to  the  place 
to__which  it  is  directed;  and  the  same  rule  applied,  although  that 
place  were  beyond  the  limits  within  which  he  in  general  professed 


300  CAKKIERS   OF   GOODS. 

to  carry  on  his  trade  of  a  carrier.     The  jury  found  a  verdict  for  the 
plaintiff,  damages  £16  Is. 

In  Easter  Term,  Cressicell  obtained  a  rule  nisi  for  a  new  trial,  on 
the  ground  of  misdirection. 

Martin  now  showed  cause,  and  contended  that  there  was  no  mis- 
direction; that  there  was  abundant  evidence  for  the  jury  of  an 
undertaking  by  the  defendants,  through  their  agent,  to  carry  the 
box  and  its  contents  to  the  place  of  its  ultimate  destination ;  that  if 
the  carriage  had  been  paid  in  advance,  according  to  the  offer  made 
by  the  plaintiff's  mother,  the  sum  demanded  would  clearly  have  been 
the  carriage  for  the  whole  distance;  and  that  to  suppose  as  many 
different  contracts  as  there  were  carriers  on  a  continuous  line  of  rail- 
w.ay,  would  be  against  all  principle  and  convenience. — The  court 
then  called  on 

Cressicell,  Baines,  and  Burrell,  in  support  of  the  rule.  This  is 
not  the  case  of  a  conveyance  travelling  throughout  a  continuous  line, 
like  a  coach,  for  instance,  which  professes  to  run  from  London  to 
York ;  in  such  a  case  parties  are  not  bound  to  look  out  for  the  par- 
ticular proprietors  interested  in  the  different  parts  of  the  line.  But 
there  it  is  held  out  to  the  public  as  one  line;  this  is  the  case  of  a 
company  known  as  the  Lancaster  and  Preston  Junction  Railway, 
and  holding  themselves  out  to  the  world  as  the  proprietors  of  and 
carriers  upon  that  distinct  line  of  railway  only.  To  hold  them 
liable  for  the  loss  of  a  parcel  beyond  the  limits  of  their  own  line 
would  therefore  be  very  unjust.  Suppose  the  case  of  a  known  coach 
from  London  to  Stamford,  and  a  party  delivers  to  the  book-keejier 
a  parcel  directed  to  York,  does  that  prove  a  contract  to  carry  it  to 
York?  [Lord  Abixgkr,  C.  B.  What  would  be  the  undertaking  of 
the  carrier  in  that  case?]  To  carry  to  Stamford,  and  forward  thence 
to  York.  Parties  must  be  assumed  to  contract  in  reference  to  the 
known  mode  in  which  the  carrier  carries  on  his  business.  Sujipose 
it  had  been  alleged  in  this  case  that  the  defendants  were  common 
carriers  from  Lancaster  to  Derby,  and  that  had  been  traversed; 
would  evidence  of  the  kind  given  on  the  part  of  the  plaintiff  have 
I)roved  that  they  were?  If  the  defendants  are  held  lialile  in  this 
case,  it  would  follow,  that  a  carrier  who  professed  on  his  i)art  to 
carry  parcels  one  stage  only  from  London,  would  be  liable  for  the 
loss  of  a  parcel  at  any  place  between  London  and  the  Land's  End; 
or  the  owners  of  a  steam-vessel  i)lying  between  Liverpool  and 
r.flfa.st,  by  receiving  a  Ijox  directed  to  an  inland  town  in  Ireland, 
would  he  responsible  for  its  safe  delivery  at  tliat  jilace.  If  it  be  so, 
tlie  same  ])rinciple  must  hold  as  to  imputed  negligence  to  jiersons  as 
t  '  .     Now,  8U)i))0se  a  i»assengcr  booked  at  Lancaster  for  Lon- 

.  injured  on  the  Nortli  Union  Ivailway:  could  tlie  projjrie- 
tors  ui  the  Lanca.ster  and  Preston  line  l)e  held  res])onsil)]e?  The 
true  construction  of  the  defendant's  contract  is,  tliat  they  engage  to 
carry  the  goods  safely  as  far  as  Preston  —  ».e.,  as  far  n.s  they  hold 


DELIVERY    BY    CARRIER.  301 

themselves  out,  and  are  empowered  by  their  Act  of  Parliament  to 
trade,  as  carriers  —  and  then  to  put  them  in  a  course  of  carriage 
onward,  by  transferring  them  to  another  carrier,  so  as  to  give  the 
owner,  in  the  event  of  their  loss,  a  right  of  action  against  the  new 
bailees.  Garside  v.  Trent  and  Mersey  Navigation  Company,  4  T.  R. 
581.  [Lord  Abinger,  C.  B.  The  defendants  refuse  to  receive 
the  money  for  the  carnage  at  the  time:  does  that  not  show  that 
they  treat  the  carriers  forward  as  their  agents,  from  whom  they  are 
to  get  their  remuneration?]  A  contrary  inference  rather  arises, — 
that  they  could  not  tell  what  the  whole  amount  of  the  carriage  would 
be,  and  therefore  declined  to  receive  it.  If  this  be  in  law  a  contract 
to  carry  the  whole  distance,  it  must  be  so  also,  although  the  other 
party  be  fully  cognizant  of  the  terms  on  which  the  defendants  carry 
on  their  business.  [Lord  Abinger,  C.  B.  Do  you  say  the  succes- 
sive carriers  are  agents  of  the  original  customer?]  Yes,  if  the  suc- 
cessive companies  be  known  to  him.  [Rolfe,  B.  How  is  he  to 
discover  on  which  line  the  goods  were  lost?]  In  Upston  v.  Slark, 
2  Car.  &  P.  598,  the  name  of  the  defendant  was  over  the  door  of  a 
booking-house  for  coaches  and  wagons  in  Piccadilly,  with  the  words 
"Conveyances  to  all  parts  of  the  world,"  followed  by  a  list  of  places, 
amongst  which  was  Windsor:  yet  it  was  held,  that  proof  of  the 
booking  at  that  office  of  a  box  directed  to  Windsor,  which  did  not 
reach  its  destination,  was  not  sufficient  to  make  the  defendant 
responsible  for  its  loss.  So,  in  Gilbert  v.  Dale,  5  Ad.  &  Ell.  543, 
1  Xev.  &  P.  22,  which  was  an  action  brought  for  negligence  in  the 
loss  of  goods,  against  the  proprietor  of  a  general  booking-office  for 
the  transmission  of  parcels  by  coach,  it  was  held  insufficient  to  prove 
that  the  goods  never  reached  their  destination.  Coleridge,  J.,  there 
says,  "Suppose  goods  were  left  with  carrier,  to  be  taken  by  him  to 
York,  and  from  thence  forwarded  to  Edinburgh,  would  it  be  suffi- 
cient, in  an  action  against  him  for  negligence,  to  show  that  the 
goods  did  not  reach  Edinburgh? "  The  same  hardship  which  is 
recited  in  the  preamble  to  the  Carriers'  Act,  1  Will.  4,  c.  68,  from 
the  great  increase  of  the  responsibility  and  risk  of  common  carriers, 
will  occur  again,  if  a  carrier  is  to  be  held  liable  under  such  circum- 
stances as  these. 

Lord  Abinger,  C.  B.  The  simple  question  in  this  case  is, 
whether  the  learned  judge  misdirected  the  jury  in  telling  them  that 
if  the  case  were  stripped  of  all  other  circumstances  beyond  the  mere 
fact  of  knowledge  by  the  party  that  the  defendants  were  carriers 
only  from  Lancaster  to  Preston,  and  if,  under  such  circumstances, 
they  accepted  a  parcel  to  be  carried  on  to  a  more  distant  place,  they 
are  liable  for  the  loss  of  it,  this  being  evidence  whence  the  jury 
might  infer  that  they  undertook  to  carry  it  in  safety  to  that  place. 
I  think  that  in  this  proposition  there  was  no  misdirection.  It  is 
admitted  by  the  defendants'  counsel  that  the  defendants  contract 
to  do  something  more  with  the  parcel  than  merely  to  carry  it  to 


302  CARRIERS   OF   GOODS. 

Preston ;  they  say  the  engagement  is  to  carry  to  Preston,  and  there 
to  deliver  it  to  an  agent,  ^vho  is  to  carry  it  further,  who  is  atterwards 
to  be  replaced  by  another,  and  so  on  until  the  end  of  the  journey. 
Now  that  is  a  very  elaborate  kind  of  contract;  it  is  in  substance 
giving  to  the  carriers  a  general  power,  along  the  whole  line  of  route, 
to  make  at  their  pkasure  fresh  contracts,  which  shall  be  binding 
upon  the  principal  who  employed  them.     But  if,   as  admitted   on 
both  sides,  it  is  clear  that  something  more  was  meant  to  be  done  by 
the  defendants  than  carry  as  far  as  Preston,  is  it  not  for  the  jury  to 
say  what  is  the  contract,  and  how  much  more  was  undertaken  to  be 
done  by  them?    Now  it  certainly  might  be  true  that  the  contract 
between  these  parties  was  such  as  that  suggested  by  the  counsel  for 
the  defendants ;  but  other  views  of  the  case  may  be  suggested  quite 
as  probable;  such,  for  instance,  as  tliat  these   railway  companies, 
though  separate  in  themselves,  are  in  the  habit,  for  their  own  advan- 
tage, of  making  contracts,  of  which  this  was  one,  to  convey  goods 
along  the  whole  line,  to  the  ultimate  terminus,  each  of  them  being 
agents  of  the  other  to  carry  them  forward,  and  each  receiving  their 
share  of  the  profits  from  the  last.     The  fact  tliat,  according  to  the 
agreement  proved,  the  carriage  was  to  be  paid  at  the  end  of  the 
journey,  rather  confirms  the  notion  that  the  persons  who  were  to 
carry  the  goods  from  Preston  to  their  final  destination  were  under 
the  control  of  the  defendants,   who   consequently   exercised   some 
influence  and  agency  beyond  the  immediate  terminus  of  their  own 
railway.     Is   it  not  then  a  question  for  the  jury  to  say  what  the 
nature  of  this  contract  was;  and  is  it  not  as  reasonable  an  inference 
for  them  to  draw,  that  the  whole  was  one  contract,  as  the  contrary? 
I  hardly  tliink  they  would  be  likely  to  infer  so  elaborate  a  contract 
as  that  which  the  defendants'  counsel  suggests;  namely,  that  as  the 
line  of  the  defendants'  railway  terminates  at  Preston,  it  is  to  be 
presumed  that  the  plaintiff,  who  intrusted  the  goods  to  them,  made 
it  part  of  his  bargain  that  they  sliould  employ  for  him  a  fresh  agent 
both  at  that  place  and  at  every  siibst'cpient  cliange  of  railway  or  con- 
veyance, and  on  each  shifting  of  the  goods  give  such  a  document 
to  the  new  agent  as  sliould  render  him  responsible.     Suppose  the 
owner  of  goods  sent  under  such  circumstances,  when  he  finds  they 
do  not  come  to  hand,  comes  to  the  railway  office  and  makes  a  com- 
ydaint,    tlicn,    if   the   defendants'    argument   in   this   case   bo   well 
founded,  unless  the  railway  company  refuses  to  supply  him  with 
the  name  of  the  new  agent,  they  l)rcak  their  contract.     It  is  true 
that,  practically,  it  miglit  make  no  great  difTerence  to  tlie  i)roi)rietor 
of  tlie  goods  wliioli  was  tlie  real  contract,  if  tlieir  not  immediately 
furnishing  him  with  tlie  name  would  entitle  him  to  bring  an  action 
against  them,     liut  the  question  is,  why  sliould  the  jury  infer  one 
of  these  contracts  rather  than  tlie  otlier?  wliich  of  tlie  two  is  the 
roost  natural,  the  most  usual,  the  most  j.robable?     Besides,  the  car- 
riage-money being  in  this  case  one  undivided  sum  rather  supports 


DELIVERY    BY    CARRIER.  303 

the  inference,  that  although  these  carriers  carry  only  a  certain  dis- 
tance with  their  own  vehicles,  they  make  subordinate  contracts  with 
the  other  carriers,  and  are  partners  inter  se  as  to  the  carriage- 
money, —  a  fact  of  which  the  owner  of  the  goods  could  know  nothing; 
as  he  only  pays  the  one  entire  sum  at  the  end  of  the  journey,  which 
they  afterwards  divide  as  they  please.  Not  only,  therefore,  is  there 
some  evidence  of  this  being  the  nature  of  the  contract,  but  it  is  the 
most  likely  contract  under  the  circumstances;  for  it  is  admitted  that 
the  defendants  undertook  to  do  more  than  simply  to  carry  the  goods 
from  Lancaster  to  Preston.  The  whole  matter  is  therefore  a  ques- 
tion for  the  jury,  to  determine  whether  the  contract  was  on  the  evi- 
dence before  them.  With  respect  to  the  case  referred  to,  of  the 
booking-ofi&ce  in  London,  it  only  goes  to  show  that  when  persons 
take  charge  of  parcels  at  such  an  office  they  merely  make  themselves 
agents  to  book  for  the  stage-coaches.  You  go  to  the  office  and  book 
a  parcel ;  the  effect  of  this  is  to  make  the  booker  your  agent,  instead 
of  going  to  the  coach-office  yourself;  and  so  that  he  sends  the  parcel 
to  the  proper  coach-office,  and  once  delivers  it  there,  he  has  dis- 
charged himself;  he  has  nothing  to  do  with  the  carriage  of  the 
goods.  In  cases  like  the  present,  particular  circumstances  might 
no  doubt  be  adduced  to  rebut  the  inference  which,  i:>rima  facie,  must 
be  made,  of  the  defendants  having  undertaken  to  carry  the  goods 
the  whole  way.  The  taking  charge  of  the  parcel  is  not  put  as  con- 
clusive evidence  of  the  contract  sued  on  by  the  plaintiff;  it  is  only 
'prima  facie  evidence  of  it;  and  it  is  useful  and  reasonable  for  the 
benefit  of  the  public  that  it  should  be  so  considered.  It  is  better 
that  those  who  undertake  the  carriage  of  parcels,  for  their  mutual 
benefit,  should  arrange  matters  of  this  kind  inter  se,  and  should  be 
taken  each  to  have  made  the  others  their  agents  to  carry  forward. 

GuRNEY,  B.  I  think  there  is  no  misdirection  in  the  case,  and 
that  the  jury  might  fairly  infer  that  the  contract  was  such  as  was 
stated  by  the  learned  judge.  If  the  goods  were  to  be  carried  only 
in  the  narrow  sense  contended  for  by  the  defendants,  then,  if  the 
place  of  their  destination  were  but  three  miles  beyond  Preston,  and 
they  were  lost  on  the  other  side  of  the  railway  terminus,  the  defend- 
ants are  not  to  be  liable,  but  the  plaintiff  is  to  find  out  somebod}-  or 
other  who  is  to  be  liable  in  respect  of  the  carriage  for  those  three 
miles. 

KoLFE,  B.  I  am  of  the  same  opinion,  and  think  the  construc- 
tion we  are  putting  on  the  agreement  is  not  only  consistent  with 
law,  but  is  the  only  one  consistent  with  common-sense  and  the  con- 
venience of  mankind.  What  I  told  the  jury  was  only  this,  that  if 
a  party  brings  a  parcel  to  a  railway  station,  which  in  this  respect  is 
just  the  same  as  a  coach-office,  known  at  the  time  that  the  company 
only  carry  to  a  particular  place,  and  if  the  railway  company  receive 
and  book  it  to  another  place  to  which  it  is  directed,  prima  facie  they 
undertake  to  carry  it  to  that  other  place.     That  was  my  vicAv  at  the 


304  CAKKIERS    OF   GOODS. 

trial,  and  nothing  has  occurred  to  alter  my  opinion.  As  to  the  case 
which  has  been  put,  of  a  passenger  injured  on  the  line  of  railway 
beyond  that  where  he  was  originally  booked,  I  suppose  it  is  put  as 
a  reductlo  ad  ahsurdum;  but  I  do  not  see  the  absurdity.  If  I  book 
my  place  at  Eustou  Square,  and  pay  to  be  carried  to  York,  and  am 
injured  by  negligence  of  somebody  between  Euston  Square  and 
York,  I  do  not  know  why  I  am  not  to  have  my  remedy  against  the 
party  who  so  contracted  to  carry  me  to  York.  But,  at  all  events,  in 
the  case  of  a  parcel,  any  other  construction  would  open  the  door  to 
incalculable  inconveniences.  You  book  a  parcel,  and  on  its  being 
lost,  you  are  told  that  the  carrier  is  responsible  only  for  one  portion 
of  the  line  of  road.  What  would  be  the  answer  of  the  owner  of  the 
goods?  —  "I  know  that  I  booked  that  parcel  at  the  Golden  Cross  for 
Liverpool,  and  my  contract  with  the  carrier  was  to  take  it  to  Liver- 
pool." All  convenience  is  oneway,  and  there  is  no  authority  the 
other  way.  Rule  discharged.^ 


NUTTING   f.    CONNECTICUT   RIVER  R.    CO. 

1  Gray  (Mass.),  502.     1854. 

Action*  of  contract  to  recover  the  value  of  two  of  the  boxes 
described  in  the  following  receipt,  signed  by  the  defendants'  agent: 
"Northampton,  Mass.,  Feb.  27th,  1851.  Received  of  E.  Nutting, 
for  transportation  to  New  York,  9  boxes  planes,  marked  R.  &  F.  21 
Piatt  St.,  New  York;  4  boxes  planes  and  handles,  marked  G.  T. 
Hewlett,  14G  Bowery  Street,  New  York. 

"Fkkd  W.  Clarke." 

The  following  facts  were  agreed  by  the  parties:  All  the  boxes 
named  in  this  receipt  were  delivered  by  the  didcndants,  witliin  a 
reasonable  time,  at  Springfield,  the  southern  ternjinus  of  their  road, 

1  The  mere  acccptnnce  of  goods  by  a  common  carrier  marked  to  a  designation 
beyond  the  terminus  of  its  line  as  a  matter  of  law  imports  no  absolute  un.lertaking 
unon  the  part  of  the  carrier  beyond  the  end  of  its  road,  but  is  a  matter  of  evidence  to 
l)C  submitted  to  the  jurv,  from  which,  in  connection  with  other  evidence  produced, 
tbev  are  to  determine,  as  a  question  oifnd,  the  real  en^a-ement  entered  into. 

This  position  was  vcr>'  ably  maintained  in  a  recent  and  elaborate  opinion  of  the 
.Supreme  Court  of  New  Hampshire,  reviewing  almost  the  whole  current  of  .lecisions 
from  Mnnehamp  v.  The  Lancaster  Railway  Co.,  S  M.  &  W.  421,  down  to  the  present 
fH-riod  Sc-e  Gray  v.  .lackson,  .M  N.  H.  9.  The  question  is  not  an  open  one  in  this 
SV.it-  In  Angle  v.  The  M.  M.  K'y  Co.,  9  Iowa,  487,  the  rule  was  settled  as  it  is 
1  to  exist  in  EnKlan.l,  and  it  was  lieM  that  the  nccej.tance  by  a  carrier  of 
;.cd  to  a  <le8tination  beyond  the  tenninns  of  its  road,  creates  a  prima  facir 
liiil-iiiiy  to  transi^rt  to  and  deliv.-r  at  that  jmint,  which  may  be  mo.lified  by  proof  of  a 
different  nnage  known  to  the  shij.per  at  the  time  of  making  the  consignmont.  Per 
Day,  J.,  in  .Mulligan  v.  Illinois  Central  R.  Co.,  30  Iowa.  181. 


DELIVERY   BY   CARRIER.  305 

to  the  New  Haven,  Hartford,  and  Springfield  Railroad  Company, 
with  whose  road  the  defendants'  road  there  connects.  The  New 
Haven,  Hartford,  and  Springfield  Railroad  extends  from  Springfield 
to  New  Haven,  and  there  connects  with  the  New  York  and  New 
Haven  Railroad,  which  extends  to  the  city  of  New  York.  The 
defendants  took  a  receipt  for  these  boxes  from  the  New  Haven, 
Hartford,  and  Springfield  Railroad  Company;  and  all  the  boxes  were 
duly  delivered  in  New  York,  except  two,  which  were  lost  between 
Springfield  and  New  Haven. 

It  is  the  practice  of  the  defendants,  who  are  common  carriers,  to 
convey  goods,  received  at  places  on  the  line  of  their  road  for  trans- 
portation to  NcAv  York,  in  their  own  cars  to  Springfield,  and  there 
to  deliver  them  to  the  New  Haven,  Hartford,  and  Springfield  Rail- 
road Company,  by  whose  agents  the  goods  are  overhauled  and 
checked.  Such  goods  are  sometimes  carried  over  the  New  Haven, 
Hartford,  and  Springfield  Railroad  without  change  of  cars,  and  are 
sometimes  shifted  into  the  cars  of  that  company.  But  the  defend- 
ants receive  pay  only  as  far  as  Springfield.  When  goods  are  brought 
from  New  York  to  j)laces  on  the  line  of  the  defendants'  road,  they 
are  brought  either  in  the  freight  cars  of  the  defendants,,  or  of  one 
of  the  two  corporations  above  mentioned,  or  of  the  Vermont  Valley 
Railroad  Company,  whose  road  extends  from  the  northern  terminus 
of  the  defendants'  road  into  the  State  of  Vermont. 

The  parties  agreed  that  if  the  defendants  were  not  liable  to  the 
plaintiff  judgment  should  be  entered  for  them;  otherwise,  that  the 
plaintiff  should  have  judgment  for  $25.50,  the  value  of  the  lost 
boxes  and  their  contents. 

Metcalf,  J.  On  the  facts  of  this  case,  we  are  of  opinion  that 
there  must  be  judgment  for  the  defendants.  Springfield  is  the 
southern  terminus  of  their  road;  and  no  connection  in  business  is 
shown  between  them  and  any  other  railroad  company.  When  they 
carry  goods  that  are  destined  beyond  that  terminus,  they  take  pay 
only  for  the  transportation  over  their  own  road.  What,  then,  is  the 
obligation  imposed  on  them  by  law,  in  the  absence  of  any  special 
contract  by  them,  when  they  receive  goods  at  their  depot  in  North- 
ampton, which  are  marked  with  the  names  of  the  consignees  in  the 
city  of  New  York?  In  our  judgment  that  obligation  is  nothing 
more  than  to  transport  the  goods  safely  to  tlip,  end  of  their  road,  and 
there  deliver  them  to  the  laroper  carriers,  to  be  forwarded  towards 
their  ultimate  destination.  This  the  defendants  did,  in  the  present 
case,  and  in  so  doing  performed  their  full  legal  duty.  If  they  can 
be  held  liable  for  a  loss  that  happens  on  any  railroad  besides  their 
own,  we  know  not  what  is  the  limit  of  their  liability.  If  they  are 
liable  in  this  case,  we  do  not  see  why  they  would  not  also  be  liable 
if  the  boxes  had  been  marked  for  consignees  in  Chicago,  and  had 
been  lost  between  that  place  and  Detroit,  on  a  road  with  which  they 
had  no  more  connection  than  they  have  with  any  railway  in  Europe. 

20 


306  CARRIERS   OF   GOODS. 

But  the  plaintiff  seeks  to  charge  the  defendants  on  the  receipt 
given  by  Clarke,  their  agent,  as  on  a  special  contract  that  the  boxes 
sliould  be  safely  carried  the  whole  distance  between  Northampton 
and  Xew  York.  "We  cannot  so  construe  the  receipt.  It  merely 
states  the  fact  that  the  boxes  had  been  received  '*  for  transportation 
to  Xew  York."  And  the  plaintiff  might  have  proved  that  fact,  with 
the  same  legal  consequences  to  the  defendants,  bj  oral  testimony, 
if  he  had  not  taken  a  receipt.  That  receipt,  in  our  opinion,  imposed 
on  the  defendants  no  further  obligation  than  the  law  imposed 
without  it. 

The  ]jlaintiff's  counsel  relied  on  the  case  of  Muscham]^  v.  Lancas- 
ter &  Preston  Junction   Kail  way,  8  ]\I.  «S:  W.  421,  in  which  it  wa~s 
decided  by  the  Court  of  Exchequer,  that  when  a  railway  company 
take  into  their  care  a  parcel  directed  to  a  particular  place,  and  do 
not  by  positive  agreement  limit  their  responsibility  to  a  i)art  only 
of  the  distance,  that  is  jirlma  facie  evidence  of  an  undertaking  to 
carry  the  parcel  to  the  place  to  which  it  is  directed,  although  that 
place  be  beyond  the  limits  within  which  the  company,  in  general, 
profess  to  carry  on  their  business  of  carriers.     And  two  justices  of 
the  Queen's  Bench  subsequently  made  a  like  decision.     "Watson  v. 
Ambergate,  Nottingham  &  Boston  Railway,  3  Eng.  Law  &  Eq.  R. 
407.     We  cannot  concur  in  that  view  of  the  law;  and  we  are  sus- 
•   tained,  m  our  dissent  from  it,  by  the  Court  of  Errors  inXew  York, 
.^^Jr   ailcT  by  the   Sujjreme   Courts   of   Vermont   and   Connecticut.     Van 
•  Santvoord  v.  St.  John,  G  Hill,   157.     Farmers'  «&  l\Iechanics'  Bank 

^\^  V.  Champlain  Transportation  Company,  18  Verm.  140,  and  23  Verm. 
'*^^^  200.  Hood  V.  New  York  &  New  Haven  Railroad,  22  Conn.  1.  In 
these  cases,  the  decision  in  "Weed  r.  Saratoga  &  Schenectady  Rail- 
road, 10  Wend.  534  (which  was  cited  by  the  present  plaintiff's  coun- 
sel), was  said  to  be  distinguishable  from  such  a  case  as  this,  and  to 
be  reconcilable  with  the  loile  that  each  carrier  is  bound  only  to  the 
end  of  his  route,  unless  he  makes  a  special  contract  that  binds  him 
further. 

Judgment  for  the  defendants.^ 


i> 


'llli:    A'J'rillSnX.    ToPEKA    c^c    SANTA    Vt   K.    CO.    v. 

ROACH. 

.3.0  Kan.  Tio.     ISSd. 

AfTiOK  brought  by  Roacli  against  The  Railroad  Company,  to 
Tecov(?r  the  value  of  certain  baggage.  Trial  at  tlip  Soptombor  Term, 
1884,  and  judgment  for  jdaintiff  for  l?227.:!L'.     Tlie  defendant  com- 

>  Ace:  Myriok  v.  MicliiKnii  Contml  U.  Co.,  107  V .  S.  lO'J. 


DELIVERY  BY  CARRIER.  307 

pany  brings  the  case  to  this  court.     The  opinion  states  the  material 
facts. 

JoHNSTo^^,  J.  This  action  was  brouglit  by  Michael  Eoach  against 
the  Atchison,  Topeka  &  Santa  Fe  Eailroad  Company,  to  recover  for 
baggage  alleged  to  have  been  lost  and  injured  while  in  transit  from 
New  York  City  to  Hutchinson,  Kansas.  A  verdict  was  given  in 
favor  of  Roach  for  $227.32,  and  judgment  rendered  accordingly. 
The  railroad  company  brings  the  case  here,  and  complains  of  the 
charge  of  the  court  and  of  the  insufficiency  of  the  evidence.  The 
essential  facts  of  the  case  maybe  briefly  stated:  On  February  28, 
1881,  Roach  purchased  eight  coupon  tickets  for  the  passage  of  him- 
self and  family  from  the  city  of  New  York  to  Hutchinson,  Kansas, 
over  the  New  York,  Lake  Erie  &  Western  Railroad,  Grand  Trunk 
Railway,  Michigan  Central  Railroad,  Chicago,  Burlington  &  Quincy 
Railroad,  Hannibal  &  St.  Joseph  Railroad,  and  Atchison,  Topeka 
&  Santa  Fe  Railroad.  The  tickets  were  purchased  from  one  Henry 
Opperman,  who  had  an  office  in  New  York,  and  who  at  the  same 
time  caused  several  pieces  of  baggage  to  be  checked  through  to 
Hutchinson,  using  checks  on  which  the  names  of  the  roads  men- 
tioned were  stamped.  As  there  was  more  baggage  than  could  be 
carried  on  the  tickets  purchased.  Roach  was  required  to  and  did  pay 
$62.15  for  extra  baggage,  and  Opperman  gave  him  duplicates  of 
the  checks,  which  he  retained.  The  defendant  in  error  and  his 
family  made  the  journey  over  the  roads  mentioned,  and  the  tickets 
were  honored  and  accepted  for  their  passage,  and  the  servants  of 
the  several  companies  detached  the  coupons  or  portions  of  the  ticket 
that  represented  the  passage-money  over  the  different  roads.  When 
the  passengers  reached  Hutchinson  application  was  made  for  the 
baggage,  and  it  was  found  that  some  of  it  had  been  lost,  and  por- 
tions of  it  badly  injured.  The  testimony  tended  to  show  that  the 
baggage  was  delivered  to  the  first  carrier  in  good  condition,  but  on 
what  road  or  roads  the  loss  or  injury  occurred  was  not  shown.  The 
plaintiff  beloAv„saLLght_to  recover.  upon_ two_;dieories :  one  that  x!  >. 
02Eg^:^ajIijyjiojohl^^h^^  oTrUe"!.  T."  &  S."R   v     \^ 

Rl(L_C(ij  3,nd  that  that  company  undertook  to  carry  the  passengers       ^  ^v. 
and  baggage  over  the  entire  route,  and  that,  being  the  contracting    ^?^^' 
carrier,  it  was  liable  for  the  loss  and  injury  regardless  of  where  and       ^^ 
upon  what  road  it  occurred.     The  otljLer__theory  is,  that  the  several 
roads  constitute  a  connected  and  united  line,  and  that  the  combina- 
tion and  running  arrangements  existing  among  the  owners  of  the 
roads  were  such  as  amounted  in  effect  to  a  partnership,  and  there- 
fore the  injury  and  loss  was  a  common  liability,  and  each  and  all  of 
the  companies  are  liable,  no  matter  upon  what  part  of  the  line  the 
loss  occurred.     No  recovery  can  be  had  upon  the  first  theory,  for 
the  reason  that  the  testimony  wholly  fails  to  establish  that  Opper- 
man was  the  agent  of  the  defendant  company.     Some  of  the  wit- 
nesses for  Roach  spoke  of  Opperman  as  the  agent  of  that  company, 


'^. 


308  CARKIEES   OF   GOODS. 

while  others  stated  that  he  was  ageut  of  the  Xew  York,  Lake  Erie 
&  Western  Kailroacl  Company.  It  was  however  develoited  upon 
cross-examination,  that  the\-  had  no  knowledge  of  his  authority  or 
agency  beyond  his  action  in  the  sale  of  the  tickets  and  the  check- 
ing of  the  baggage.  Opperman  testified  that  he  was  tlie  authorized 
agent  of  the  New-  York,  Lake  Erie  &  Western  Railroad  Company, 
and  sold  tickets  for  and  as  the  agent  of  that  company,  and  that  he 
did  not  represent  and  was  not  the  agent  of  the  defendant  company. 
There  was  other  testimony  to  tlie  same  effect,  and  also  that  when 
Roach  purchased  his  tickets  the  defendant  company  had  no  tickets 
on  sale  in  or  about  the  city  of  New  York.  The  theory  tliat  the 
defendant  company  was  the  original  contracting  carrier  finds  no 
support  in  the  testimony,  and  no  liability  arises  against  the  com- 
pany on  that  ground.  Where  then  is  the  liability?  It  is  contended 
by  the  railroad  company  that  the  New  York,  Lake  Erie  &  Western 
Railroad  Company,  being  the  first  carrier,  is  alone  liable.  While 
a  railroad  company  cannot  be  compelled  to  transport  to  a  point 
beyond  its  own  line,  it  is  well  settled  that  it  may  lawfully  contract 
to  carry  persons  and  property  over  its  own  and  other  lines  to  a  des- 
tination beyond  its  own  route;  and  when  such  a  contract  is  made,  it 
assumes^ll  the  obligations  of  a  carrier  over  the  connecting  lines  as 
well  as  its  own.  In  such  cases  the  connecting  carriers  engaged  in 
completing  the  carriage  are  deemed  to  be  agents  of  the  first  carrier, 
for  whose  negligence  and  default  tlie  contracting  carrier  becomes 
liable.  Berg  v.  A.  T.  &  S.  F.  Kid.  Co.,  oO  Kas.  501;  Lawson's  Con- 
tracts of  Carriers,  §  235;  Hutchinson  on  Carriers,  §  145;  Thompson's 
Carriers  of  Passengers,  p.  431;  2  Rorer  on  Railroads,  p.  1234.  Of 
course  a  railroad  company  or  other  common  carrier  may  limit  its 
liability  to  the  loss  or  injury  occurring  on  its  own  line,  and  tlie 
understanding  or  contract  between  the  parties  is  to  be  determined 
from  tlie  facts  of  each  case.  Some  of  the  courts  have  held  that  the 
mere  acceptance  of  the  property  marked  for  transjjortation  to  a 
place  beyond  the  terminus  of  the  road  of  the  aocejiting  carrier, 
amounts  to  an  undertaking  to  carry  to  tlie  ultimate  destination, 
whatever  that  may  be;  and  in  the  absence  of  any  conditions  or  limi- 
tations to  the  contrary,  will  nuike  it  liable  for  a  loss  occurring  upon 
the  connecting  lines  as  well  as  its  own;  while  others  hold  that  in 
such  a  case  the  carrier  is  only  Ijound  to  safely  carry  to  the  end  of 
its  own  route,  and  there  to  deliver  to  the  connecting  carrier  for  the 
completion  of  the  carriage.  Lawson's  Contracts  of  Carriers,  §§  238, 
231),  240.  liut  where  a  railroad  company  sells  a  tlirough  ticket  for 
a  single  fare  over  its  own  and  other  roads,  and  checks  the  baggage 
of  the  ])assenger  over  tlie  entire  route,  mcjre  is  imj)lied,  it  seems  to 
us,  than  the  mere  acceptance  of  the  propi-rty  marked  for  a  <l«'stina- 
tion  beyond  the  terminus  of  its  own  line.  Tlie  sale  of  a  through 
ticket  and  the  checking  of  the  baggage  for  the  whole  distance  is 
Bome  evidence  of  an  undertaking  to  carry  tinj  passenger  and  liaggage 


DELIVERY   BY   CARRIER.  309 

to  the  end  of  the  journey.  The  contract  need  not  be  an  express  one, 
but  may  arise  by  implication  and  may  be  established  by  circum- 
stances the  same  as  other  contracts.  In  Wisconsin  a  passenger  pur- 
chased a  through  ticket  from  the  Chicago  &  Milwaukee  Kailway 
Company  from  Milwaukee  to  New  York  City,  and  at  the  same  time 
delivered  her  trunk  to  that  company,  and  received  therefor  a 
through  check  to  New  York  City.  Upon  arrival  at  New  York  the 
trunk  was  found  to  have  been  opened  and  some  of  the  articles  taken 
therefrom.  The  Supreme  Court,  in  ruling  upon  the  effect  of  the 
railway  company  issuing  the  through  ticket  and  check,  stated 
that :  — 

"  The  ticket  and  check  given  by  the  Chicago  &  Milwaukee  Rail- 
way Company  implied  a  special  undertaking  by  that  company  to 
safely  transport  and  carry,  or  cause  to  be  safely  transported  and 
carried,  the  plaintiff  and  her  baggage  over  the  roads  mentioned  in 
the  complaint,  from  Milwaukee  to  the  city  of  New  York.  This  we 
think  must  in  legal  contemplation  be  the  nature  and  extent  of  the 
contract  entered  into  and  assumed  by  that  company  when  it  sold  the 
plaintiff  the  through  ticket  and  gave  a  through  check  for  the  trunk, 
and  received  the  fare  for  the  entire  route."  Candee  v.  Pennsylvania 
Rid.  Co.,  21  Wis.  582;  111.  Cent.  Rid.  Co.  v.  Copeland,  24  111.  332; 
Carter  v.  Peck,  4  Sneed  [Tenn.],  203;  Railroad  v.  Weaver,  9  Lea, 
58;  B.  &  0.  Rid.  Co.  v.  Campbell,  36  Ohio  St.  647;  same  case,  3 
Am.  &  Eng.  Rid.  Cases,  246;  2  Rorer  on  Railroads,  p.  1001. 

From  the  authorities  we  conclude  that  the  sale  of  a  through  ticket 
for  a  single  fare  by  a  railroad  company  to  a  point  on  a  connecting 
line,  together  with  the  checking  of  the  baggage  through  to  the  des- 
tination, is  evidence  tending  to  show  an  undertaking  to  carry  the 
passenger  and  baggage  the  whole  distance,  and  which  in  the  absence 
of  other  conditions  or  limitations  and  of  all  other  circumstances 
will  make  such  carrier  liable  for  faithful  performance,  and  for  all 
loss  on  connecting  lines,  the  same  as  on  its  own.  The  liability  of 
the  first  carrier  does  not  necessarily  relieve  the  defendant  company 
from  responsibility.  Each  carrier  is  liable  for  the  result  of  its  own 
negligence,  and  although  the  first  carrier  may  have  assumed  the 
responsibility  for  the  transportation  to  a  point  beyond  its  own  route, 
any  of  the  subsequent  or  connecting  carriers  to  whose  default  it  can 
be  traced  will  be  liable  to  the  owner  for  the  loss  of  his  baggage. 
Hutchinson  on  Carriers,  §  715;  Aigen  v.  Boston  &  Maine  Rid.  Co., 
132  Mass.  423;  Railroad  v.  Weaver,  9  Lea,  39. 

The  defendant  company  cannot,  however,  be  held  liable  upon  that 
ground,  because  there  is  no  evidence  that  the  baggage  was  injured 
or  lost  while  in  the  custody  of  that  company,  nor  was  it  in  fact 
shown  upon  what  part  of  the  route  the  injury  or  loss  occurred. 

The  other  theory  upon  which  a  recovery  is  sought  is,  that  the 
several  connecting  lines  over  which  the  baggage  was  to  be  carried 
should   be  treated  as  a  continuous  and  united  line,  and  that  the 


>-•> 


310  CARRIERS   OF   GOODS. 

arrangements  made  by  the  several  lines  for  through  traffic  was  such 
as  to  constitute  them  a  partnership.  There  is  a  singular  lack  of 
testimony  in  the  case,  not  only  respecting  the  terms  of  the  contract 
with  the  passenger,  but  also  in  regard  to  the  relations  existing 
among  the  several  carriers.  Xot  a  word  of  testimony  was  intro- 
duced as  to  the  running  arrangements  between  the  companies,  nor 
the  basis  upon  which  through  business  was  done.  The  practice  or 
custom  of  the  companies  in  the  past  was  not  shown,  neither  was 
tliere  any  proof  that  they  had  ever  co-operated,  or  had  done  any 
through  business  beyond  the  transaction  in  question.  It  was  not 
even  shown  what  the  form  of  the  ticket  was,  nor  what  were  the 
stipulations,  if  any,  printed  on  them.  There  was  in  fact  no  evi- 
dence upon  which  to  predicate  a  theory  of  partnership,  or  that  each 
of  the  companies  was  the  agent  of  all  the  others,  except  the  single 
transaction  of  selling  the  tickets  and  checking  the  baggage.  It  is 
doubtless  true  that  arrangements  are  frequently  made  among  rail- 
road companies  whose  lines  connect,  for  througli  traffic,  which  con- 
stitute them  partners.  Such  an  arrangement  is  greatly  to  the 
advantage  of  the  companies;  the  convenience  which  it  affords  the 
public  invites  business,  and  swells  the  traffic  of  the  companies 
engaged  in  the  joint  enterprise.  These  arrangements  among  asso- 
ciated lines  render  it  difficult  for  the  passenger  or  shii)i)er,  in  case  of 
loss  or  injury  of  his  property,  to  ascertain  where  the  loss  occurred; 
but  no  such  difficulty  lies  in  the  way  of  the  railroad  companies;  they 
have  the  facilities  and  can  easily  trace  the  property  to  the  company 
which  caused  the  injury  or  loss.  In  interpreting  the  agreements 
and  conduct  of  associated  lines  engaged  in  a  through  traffic,  public 
policy  and  the  inconvenience  mentioned  should  be  considered,  and 
they  should  be  fairly  and  liberally  interpreted  towards  the  patrons 
of  the  lines  holding  the  companies,  where  it  is  admissible  under 
the  rules  of  the  law,  to  a  common  liability  as  partners.  But  sucli 
arrangements  for  through  traffic  cannot  hv  held  to  be  a  ijartncrshiji, 
unless  there  is  a  community  oi  interest  among  the  companies,  and 
under  which  each  shares  the  profits  and  losses  of  the  enterprise. 
The  mere  sale  of  a  through  coupon  ticket  over  the  connecting  lines 
of  several  companies,  and  the  checking  of  the  baggage  to  the  end  of 
the  route  does  not  show  sucli  a  community  of  interest  as  would  make 
them  i>artners  intfr  scse,  or  as  to  tliird  persons.  Tliis  f|uesti<)n  has 
been  directly  axljudged.  A  through  ticket  was  purchased  for  pas- 
sage from  New  York  to  Washington  over  three  lines  of  railroad 
which  conKtitut<!d  a  through  line  for  the  transportation  of  passen- 
gers and  freight,  and  the  j)assengor  jjurohasing  the  ticket  received 
a  through  check  for  her  baggage.  It  appeared  that  the  fare  received 
for  througli  tickets  was  accounted  for  l)y  the  company  selling  the 
tickets  to  the  other  lines  according  to  certain  establislied  rates,  but 
there  was  no  division  of  losses;  and  it  w.is  held  in  an  action  against 
the  last  carrier  to  recover  for  lost  baggage,  that  tlie  first  carrier  was 


DELIVERY  BY  CARRIER.  311 

liable  for  losses  occurring  on  its  own  line,  as  well  as  any  other  con- 
necting line  throughout  the  whole  distance,  but  that  the  arrange- 
ment of  the  three  companies  for  the  sale  of  through  tickets  and  the 
issuance  of  through  checks,  while  it  resembled  a  partnership,  did 
not  constitute  one,  nor  make  any  of  the  connecting  carriers  liable  for 
a  loss  not  occurring  on  its  own  line.  Croft  v.  B.  &  0.  Kid.  Co., 
1  Mc Arthur,  492. 

In  Hartan  v.  Eastern  Eailroad  Co. ,  114  Mass.  44,  it  was  ruled 
that  arrangements  between  connecting  roads  forming  a  continuous 
line  for  the  sale  of  through  coupon  tickets,  which  enabled  passen- 
gers to  pass  over  all  the  roads  without  change  of  cars,  did  not  imply 
joint  interest  or  joint  liability.  In  another  case,  where  several  car- 
riers whose  lines  connected  made  an  agreement  among  themselves  to 
appoint  a  common  agent  at  each  end  of  a  continuous  line  to  sell 
through  tickets  and  receive  fare,  it  was  held  that  this  arrangement 
did  not  constitute  them  partners  as  to  passengers  who  purchased 
through  tickets,  so  as  to  render  each  of  the  companies  liable  for 
losses  occurring'on  any  portion  of  the  line.  Ellsworth  v.  Tartt,  26 
Ala.  733.  A  someAvhat  similar  case  was  decided  in  New  York. 
There  a  passenger  purchased  a  through  ticket  from  New  York  to 
Montreal  over  several  connecting  lines  of  railroad,  owned  by  several 
companies.  The  ticket  was  a  strip  of  paper  divided  into  coupons, 
whereof  one  was  to  be  detached  and  surrendered  to  the  conductor  of 
each  line  on  the  route.  The  passenger,  instead  of  giving  his  valise 
into  the  charge  of  the  agent  of  the  company  and  receiving  a  check 
therefor,  kept  it  in  his  own  charge  to  the  terminus  of  the  line  of  the 
■first  carrier,  where  he  delivered  it  to  the  agent  of  the  connecting 
line,  who  checked  it  through  to  another  point  on  the  road.  It 
appeared  that  an  arrangement  had  been  entered  into  between  the 
various  lines  from  New  York  to  Montreal  to  connect  regularly. 
Tickets  were  sold  in  New  York  for  the  entire  route  or  intermediate 
places,  under  the  direction  of  a  general  agent,  who  was  paid  by  the 
several  companies.  The  rate  of  fare  was  different  on  the  different 
roads,  and  each  company  received  its  own  proportion  of  the  whole 
fare  or  passage-money  at  the  close  or  at  the  beginning  of  every 
month,  according  to  the  established  rates  of  fare.  It  was  held  that 
there  was  nothing  in  an  arrangement  like  this  to  constitute  the 
different  companies  partners  for  the  transportation  of  passengers  or 
baggage,  so  as  to  make  one  of  them  liable  in  common  with  the  others 
for  the  loss  of  the  valise.  It  was  decided  that  "the  arrangement 
may  be  beneficial  to  them  as  well  as  to  the  public,  inasmuch  as  by 
facilitating  travel,  it  may  tend  to  increase  it,  but  that  would  not 
create  that  joint  interest,  that  community  in  profit  and  loss  which 
is  essential  to  the  existence  of  a  partnership."  Straiton  v.  New 
York  &  New  Haven  Hid.  Co.,2  E.  D.  Smith,  184;  Hot  Springs  Rid. 
Co.  V.  Tripple  &  Co.,  42  Ark.  4G5;  same. case,  18  Am.  &  Eng.  PJd. 
Cas.  562;  Aigen  v.  Boston  &  Maine  Rid.  Co.,  132  ^Nlass.  423;  same 


312  CARRIERS   OF   GOODS, 

case,  6  Am.  &  Eng.  Kid.  Cas.  426;  Darling  v.  Boston  &  Worcester 
Eld.  Co.,  11  Allen,  295;  Kessler  t'.  Railroad  Co.,  61  N.  Y.  538; 
Irwin  f.  Kid.  Co.,  92  111.  103;  Insurance  Co.  v.  Kid.  Co.,  104  U.  S. 
14G;  same  case,  3  Am.  &  Eng.  Kid.  Cas.  200. 

Among  the  cases  relied  on  by  the  defendant  in  error  is  Hart  v. 
Kid.  Co.,  4  Selden,  37.  In  that  case  the  defendant,  which  was  one 
of  three  railroad  companies  owning  distinct  portions  of  a  continuous 
road,  was  held  liable  for  tlie  loss  of  the  baggage  of  a  passenger 
received  at  one  terminus  to  be  carried  over  the  whole  road.  The 
liability  was  not,  however,  based  alone  upon  the  selling  of  the  ticket 
and  the  checking  of  the  baggage.  In  addition  to  through  tickets,  it 
appeared  that  under  the  agreement  made  each  of  the  railroad  com- 
panies ran  its  cars  over  the  wliole  route,  and  employed  the  same 
agents  to  sell  passage-tickets.  Besides  these  facts,  it  appeared  that 
the  lost  baggage  had  been  placed  directly  in  charge  of  the  servants 
of  the  defendant  company,  and  that  its  loss  was  due  in  part  to  the 
negligence  of  that  company. 

Texas  «S:  Pacific  Kid.  Co.  v.  Fort,  a  decision  by  the  commission  of 
appeals  of  the  State  of  Texas,  reported  in  9  Am.  &  Eng.  Kid.  Cases, 
392,  is  also  relied  on.  There  it  is  held  that  the  delivery  of  through 
checks,  upon  which  were  stamped  letters  indicating  the  different 
railways  over  which  the  baggage  would  go,  constituted  a  contract 
under  which  the  several  companies  were  liable,  regardless  of  the 
line  upon  which  the  loss  occurred,  —  a  proposition  to  wliich  we  can- 
not accede.  The  decision  in  this  case  is  based  upon  the  ruling  in 
Hart  V.  Kailroad  Co.,  supj'a,  which,  as  we  have  seen,  was  deter- 
mined upon  other  considerations.  The  same  may  also  be  said 
respecting  Texas  &  Pacific  Kailway  Co.  v.  Ferguson,  another  de- 
cision of  the  commission  of  appeals  of  Texas,  9  Am.  tS:  Eng. 
Rid.  Cases,  395,  as  well  as  Hart  v.  The  Grand  Era,  1  Woods 
C.  C.  184. 

The  only  other  case  relied  on  is  Wolf  t*.  Central  Kid.  Co.,  68  Ga. 
653.  It  was  there  held  that  where  a  passenger  with  a  through  ticket 
over  a  connecting  line  checked  his  baggage  at  the  starting-point 
through  to  his  destination,  and  upon  arrival  there  found  that  it  hail 
been  injured,  he  might  sue  the  railroad  company  which  issued  the 
cliefk  or  tlie  one  delivering  the  baggage  in  bad  order.  Upon  the 
facts  in  that  case  the  court  determined  that  the  comi)any  selling 
the  tickets  was  to  be  regarded  as  the  agent  of  the  other  companies 
composing  the  line,  and  intimated  that  where  a  passenger  travels 
over  a  continuous  line  on  a  through  ticket,  and  the  baggage  is  sent 
on  a  through  check,  that  any  one  of  tlie  companies  may  be  held 
lial)le  for  spoliation  of  the  l)aggage,  irrespective  of  the  jidint  at  which 
it  actually  occurred ;  and  the  querj'  is  also  raised  as  to  whether  th(>y 
are  jointly  liable  as  partners.  The  writer  of  the  opinion  held  that 
by  tlje  .sale  of  the  tickets  and  the  division  of  the  receipts  at  period- 
ical settlements  they  acted  as  princii>als  and  not  as  agents,  and  that 


DELIYEIiY    BY   CAKRIER.  313 

by  such  action  they  stood  substantially  in  the  position  of  partner  in 
the  through  business,  and  were  jointly  and  severally  liable  as  such. 
The  concurrence  of  the  other  justices  was,  however,  placed  upon  the 
ground  that  as  the  last  carrier,  and  the  one  which  was  sued,  received 
the  baggage  in  apparent  good  condition,  it  was  presumably  liable, 
and  the  Chief  Justice  stated  that  this  was  the  exact  point  decided. 
It  is  difficult  in  many  cases  to  determine  whether  the  arrangements 
and  agreements  of  connecting  carriers  are  such  as  to  constitute  each 
of  them  principals,  or  to  place  them  in  the  relation  of  partners ;  but 
neither  upon  reason  or  authority  can  we  hold  that  the  sale  of 
through  tickets  and  the  checking  of  baggage  over  the  connecting 
lines  of  several  companies,  without  other  proof  of  their  relations  or 
the  basis  upon  which  the  business  was  done,  is  sufficient  to  make 
them  jointly  and  severally  liable  as  partners. 

The  instructions  of  the  court  not  being  in  accord  with  the  views 
herein  expressed,  and  the  evidence  being  insufficient  to  support  the 
verdict,  the  judgment  of  the  District  Court  must  therefore  be 
reversed,  and  the  cause  remanded  for  another  trial. 

All  the  justices  concurring. 


PETERSON  V.   CHICAGO,    ROCK  ISLAND   AND  PACIFIC 

R.    CO. 

80  Iowa,  92.     1890. 

The  plaintiff  seeks  to  recover  of  the  defendants,  who  are  common 
carriers  of  passengers  and  baggage,  the  value  of  certain  wearing 
apparel,  ornaments,  and  other  property  which  were  stolen  from  cer- 
tain trunks  of  the  plaintiff  and  her  husband,  while  being  conveyed 
as  baggage  from  Davenport,  in  this  State,  to  the  city  of  Los  Angeles, 
in  the  State  of  California.  There  was  a  trial  by  jury,  and  at  the 
close  of  the  introduction  of  the  evidence  the  court,  on  the  motion 
of  the  defendants,  directed  the  jury  to  return  a  verdict  for  the 
defendants.     Plaintiff  appeals. 

ROTHROCK,  C.  J.  ........  . 

II.  In  an  amendment  to  the  petition  the  plaintiff  set  up  a  second 
and  further  cause  of  action,  in  which  it  is,  in  substance,  alleged 
that,  at  the  time  the  tickets  were  purchased  by  Peterson  and  the 
journey  was  made,  the  four  railroad  companies  owned  and  operated 
by  the  defendants  formed  a  complete  connecting  line  of  railway 
from  Davenport  to  Los  Angeles,  and  at  said  time  said  four  defend- 
ants had  formed  and  entered  into  an  agreement  and  combination  for 
the  purpose  of  transporting  passengers  and  their  baggage  from 
Davenport  to  Los  Angeles,  by  using  said  four  lines  of  railway  as  a 


314  CARRIERS   OF   GOODS. 

continuous  line  between  said  places,  and  making  one  fnre  or  charge 
for  such  transportation  for  the  entire  distance,  '"  that  said  business 
of  transporting  said  baggage  was  done  by  defendants  in  such  a  man- 
ner that  it  was  impossible  for  plaintiff  or  her  husband  to  know  or 
discover  at  what  particular  place  on  said  route  said  property  was  so 
taken  from  trunks,  and  she  is,  therefore,  unable  to  state."  There 
was  no  evidence  to  sustain  this  count  of  the  petition  as  against 
the  Chicago,  Kock  Island  and  Pacific  Eailwa.y  Company.  On  the 
contrary,  it  is  expressly  provided,  on  the  face  of  the  ticket,  that  the 
said  company  assumed  "■  no  responsibility  beyond  its  own  line."  It 
did  not  check  the  baggage  beyond  its  own  line,  and  the  evidence 
shows  that  the  trunks  were  not  opened  while  they  were  in  the  pos- 
session of  that  company.  When  the  baggage  was  delivered  at  Kansas 
City,  the  checks  taken  up  and  the  trunks  rechecked,  the  contract, 
so  far  as  the  Rock  Island  Company  was  concerned,  was  fully  per- 
formed. The  court  is  committed  to  the  doctrine  that  the  receiving 
or  initial  carrier  may,  by  a  stipulation  in  the  bill  of  lading  or  con- 
tract of  carriage,  limit  its  liability  to  injuries  to  the  consignment 
which  occur  on  its  own  line.  ^Mulligan  v.  Railway  Co.,  .36  Iowa,  181. 
We  do  not  understand  counsel  fur  appellant  to  claim  that  the  court 
erred  in  directing  a  verdict  for  the  Rock  Island  Company,  and  it  has 
made  no  appearance  in  this  court,  and  has  not  filed  cither  brief  or 
argument. 

The  important  question  to  be  determined  in  the  case  is  whether 
the  other  three  defendants  are  jointly,  or,  rather,  jointly  and 
severally,  lialde  for  the  pillage  of  plaintift's  baggage.  Tliat  some 
one  of  them  is  liable  there  can  be  no  serious  question.  It  is  true 
that  larceny  may  have  been  committed  by  the  employees  of  the 
transfer  company  at  Los  Angeles.  But,  in  view  of  the  brief  time 
between  the  delivery  of  the  checks  and  the  arrival  of  tlie  baggage  at 
the  hotel,  this  is  not  at  all  probable.  To  determine  this  question,  it 
will  be  necessary  to  analyze  the  contract,  and  determine  its  legal 
effect  upon  the  rights  of  the  parties.  It  will  be  observed  that  the 
ticket  does  not  provide  that  the  Atchison,  Topeka,  and  Santa  F^,  tlie 
Atlantic  and  Pacific,  and  the  California  Soutliern  Railroad  com- 
panies assumed  no  responsil)ility  bt-yond  tlieir  own  line.  Their 
obligation  is,  therefore,  to  be  determined  by  the  ticket  with  the 
coupons  attached,  and  by  the  other  facts  developed  in  tlie  evidence 
tending  to  show  what  the  real  contract  was;  and  liere  it  is  ju-oper  to 
say  tliat  a  railroad  passenger  ticket  docs  not  ordinarily  import  a 
complete  contract.  It  is  in  some  sense  like  a  check  for  baggage.  It 
is  issued  Vjy  the  carrier  as  the  evidence  of  the  riglit  of  the  jjassenger 
to  transportation  between  the  points  named  on  the  face  of  the  ticket. 
It  is  surely  not  as  complete  a  contract  in  form  as  a  bill  of  lading  for 
the  transportation  of  goods,  and  a  l)ill  of  lading  is  everywhere  recog- 
nized as  a  receipt  as  well  as  a  cf>ntract.  In  the  case  of  Steamboat 
Co.  V.  Brown,  o4  Pa.  St.  77,  speaking  of  a  bill  <>f  lading,  it  is  said: 


DELIVERY  BY  CARRIER.  315 

"On  its  face,  it  is  but  a  memorandum,  and  not  in  form  a  contract 
inter  partes.  It  is  doubtless  an  instrument  fitted  for  the  occasion  in 
which  it  is  usually  employed;  and  while  what  is  clearly  expressed 
may  not  be  contradicted  by  oral  testimony,  unless  under  the  quali- 
fication of  fraud  or  mistake,  yet  there  is  no  rule  which  excludes  tes- 
timony to  explain  it,  and  to  show  what  the  real  contract  was,  of 
which  it  is  but  a  note  or  memorandum  at  best."  And  see  Quimby 
V.  Vanderbilt,  17  N.  Y.  306.  This  court  has  determined  that, 
where  a  contract  is  partly  in  writing  and  partly  by  verbal  agree- 
ment, parol  evidence  may  be  introduced  to  show  the  portion  of  the 
contract  not  reduced  to  writing.  Singer  Sewing  Machine  Co.  v. 
Holcomb,  40  Iowa,  43;  Keen  v.  Beckman,  66  Iowa,  672. 

Applying  this  rule  to  the  evidence  in  the  case,  it  appears  that  the 
Rock  Island  Railroad  Company  or  its  ticket  agent  was  authorized  to 
sell  through  tickets  over  the  three  roads,  and  to  collect  and  receive 
the  full  fare  for  the  whole  distance  from  Kansas  City  to  Los  Angeles. 
How  this  was  divided  among  the  said  companies  does  not  appear. 
So  far  as  it  appeared  to  Peterson,  the  purchaser  of  the  tickets,  it 
was  a  joint  transaction.  The  ticket  recognizes  the  right  of  the  pas- 
senger to  have  the  baggage  transported  over  the  respective  lines,  and 
an  attempt  was  made  to  limit  the  liability  to  one  hundred  dollars, 
but  no  reference  is  made  to  any  several  liability  of  any  company 
forming  the  line,  except  the  Rock  Island  Company.  The  Rock 
Island  Company,  as  the  agent  of  the  other  lines,  had  no  authority 
to  check  baggage  over  them.  This  is  apparent  from  the  fact  that 
the  trunks  were  passed  over  the  Rock  Island  road  without  question 
as  to  their  weight;  but,  when  they  were  rechecked  by  the  Atchison, 
Topeka,  and  Santa  Ee  Company  at  Kansas  City,  the  sum  of  twenty- 
seven  dollars  on  extra  baggage  was  exacted  by  the  company,  and 
paid  by  Peterson,  and  in  consideration  thereof  the  baggage  was 
checked  through  to  Los  Angeles.  This  was,  in  effect,  paying  to  all 
three  of  the  companies  for  carrying  extra  baggage  from  Kansas  City 
to  the  end  of  the  journey.  It  appears  that  the  trunks  and  Peterson 
and  his  family  were  all  carried  through  to  Los  Angeles  on  the  same 
train.  It  does  not  appear  whether  there  was  any  change  of  passen- 
ger or  baggage  cars  in  the  train.  The  checks  delivered  to  Peterson 
at  Kansas  City  imported  an  obligation  on  the  part  of  the  three  com- 
panies to  carry  the  baggage  through  to  its  destination.  A  check  for 
baggage  has  the  same  elements  of  a  contract  as  an  ordinary  railway 
passenger  ticket.  It  is,  to  say  the  least,  some  evidence  of  the  con- 
tract between  the  carrier  and  the  traveller  for  the  transportation  of 
his  baggage.  Anderson  v.  Railway  Co.,  65  Iowa,  131.  An  exam- 
ination of  the  coupon  attached  to  the  ticket  above  set  out  will  show 
that,  at  the  foot  of  the  coupon,  the  initials  of  all  of  the  defendants 
appear.  It  is  not  claimed  that  these  initials  are  not  intended  to 
represent  the  defendants.  There  is  no  evidence  tending  to  show  for 
what  purpose  these  initials  were  placed  there,  but  it  is  conceded 


316  CARRIERS   OF   GOODS. 

they  were  on  all  the  coupons.  It  is  contended  by  counsel  for  appel- 
lees that  these  initials  Avere  placed  upon  the  coupons  to  indicate  the 
route  pursued  by  the  traveller.  Counsel  for  appellant  claim  that 
they  are  signatures  to  a  contract.  In  the  absence  of  any  evidence, 
and  in  construing  the  contract  so  far  as  it  is  written,  and  in  connec- 
tion with  the  facts  above  recited,  we  think  the  defendants  ought  not 
to  complain  if  it  be  held  that  they  imported  a  joint  obligation  upon 
the  part  of  the  defendants,  except  the  Kock  Island  Company,  which, 
by  the  express  stipulation  in  the  body  of  the  ticket,  is  not  bound  for 
any  failure  beyond  its  own  line.  The  appearance  of  these  initial 
letters  on  all  the  coupons  was,  to  say  the  least,  an  important  fact, 
to  be  considered  in  determining  whether,  as  to  the  last  three  roads 
in  the  line,  there  were  three  separate  contracts  or  one  joint  contract; 
and  we  can  see  no  valid  reason  why  it  may  not  be  held  that  the  con- 
tract, so  far  as  the  last  three  roads  are  concerned,  was  completed 
by  what  occurred  at  Kansas  City  and  afterwards.  It  is  true  the 
Atchison,  Topeka,  and  Santa  Fe  Company  was  an  intermediate  car- 
rier. But  such  a  carrier  may,  by  its  contract,  make  itself  liable  for 
the  safe  transportation  of  the  baggage  through  the  entire  route. 
Beard  v.  Railway  Co.,  79  Iowa,  518. 

It  is  important  to  understand  just  what  question  was  determined 
by  the  District  Court.  The  direction  to  the  jury  to  return  a  verdict 
for  the  defendants  was,  in  effect,  a  holding  that  there  was  not  suffi- 
cient evidence  to  submit  to  the  jury  to  justify  a  verdict  that  the 
defendants  were  jointly  liable.  In  other  words,  that  the  ticket, 
with  the  coupons  attached,  together  with  parol  evidence,  showed 
that  four  separate  contracts  were  made,  which  made  four  causes  of 
action,  or  one  action  against  each  company  for  spoliation  of  the 
baggage  on  its  road  only,  and  that  there  was,  therefore,  a  misjoinder 
of  causes  of  action.  If  this  was  correct,  there  could  be  no  recovery 
against  either  company,  because  there  was  no  evidence  at  what  point 
of  the  line  the  trunks  were  unlocked  and  the  property  removed. 
The  counsel  for  the  plaintiff  cited  a  large  number  of  cases,  which 
it  is  claimed  hold  that,  under  like  facts,  the  several  lines  are  held 
to  be  jointly  liable,  and  other  cases  where  the  last  carrier  in  the 
continuous  line  is  held  lialjle.  Tlie  following  are  some  of  the  author- 
ities relied  upon:  Laughlin  v.  Railway  Co.,  28  Wis.  204;  lirintnall 
V.  Railway  Co.,  .32  Vt.  605;  Hart  v.  Railway  Co.,  8  N.  Y.  .^7;  Fair- 
child  V.  Slocum,  19  Wend.  329;  Wolff  r.  Railway  Co.,  08  Ga.  653; 
Railway  Co.  v.  I^lclntosh,  73  Ga.  532;  Barter  v.  Wheeler.  lH  X.  TI. 
9;  and  Harp  v.  The  Grand  Era,  1  ^Vo()ds,  184. 

In  the  la.st  above  case  the  action  was  against  an  intermediate  car- 
rier, and  in  all  the  others  the  action  was  either  against  the  receiving 
rnrrier  or  the  last  one  in  the  line.     In  one  of  the  rases  —  that  of 
■lilin  V.  Railway  Co.  — the  action  was  against  the  last  carrier. 
I      ■<;  wa.s  no  evidence  at  what  point  the  goods  were  stolen,  and  the 
court  held  the  defendant  liable  upon  the  presumption  that  the  goods 


DELIVERY  BY  CAREIER.  317 

were  stolen  in  the  possession  of  the  last  carrier.  In  Brintnall  v. 
Eailway  Co.,  the  plaintiff  was  permitted  to  recover  of  the  receiving 
carrier,  because,  when  the  goods  were  shown  to  have  been  in  its 
custody,  it  was  incumbent  on  it  to  show  that  it  had  delivered  the 
goods  to  the  next  carrier  in  the  line.  It  may  be  said  of  all  the  cited 
cases  that  they  rest  mainly  upon  what  is  deemed  presumptions. 
These  presumptions  are  grounded  upon  the  necessities  of  the  case, 
rather  than  upon  any  clear  and  well-defined  legal  grounds.  Indeed, 
many  of  them  are  really  grounded  upon  the  thought  that,  where  it 
is  impossible  for  the  owner  to  show  upon  which  part  of  the  whole 
line  of  travel  the  property  was  lost  or  stolen,  it  is  incumbent  on  the 
defendant  to  show  itself  clear  of  the  loss.  In  one  of  the  cited  cases. 
Smith  V.  Railway  Co.,  43  Barb.  225,  it  is  said:  "Unless  this  rule 
is  to  be  applied  to  goods  delivered,  to  be  transported  over  several 
connecting  railroads,  there  would  be  no  safety  to  the  owner.  It 
would  often  be  impossible  for  him  to  prove  at  what  point,  or  in  the 
hands  of  what  company,  the  injury  happened."  Others  of  the  cited 
cases  hold  the  defendants  liable  upon  grounds  which  are  really  based 
upon  the  thought  that  all  of  the  connecting  lines  are  jointly  liable. 
This  is  true  of  the  case  of  Wolff  v.  Railway  Co.,  68  Ga.  G53;  and 
in  Railway  Co.  v.  Fort,  9  Am.  &  Eng.  R.  R.  Cas.  392,  and  Rail- 
way Co.  V.  Ferguson,  9  Am.  &  Eng.  R.  R.  Cas.  395,  the  Supreme 
Court  of  Texas  holds  that,  when  a  person  purchases  a  through  ticket 
over  several  railroads,  and  procures  a  corresponding  check  for  his 
baggage,  and  the  baggage  is  lost,  each  carrier  is  the  agent  of  all  the 
others,  and  is  liable  to  any  damage  to  the  baggage  on  whatever  part 
of  the  line  the  damage  was  done.  The  case  of  Harp  v.  The  Grand 
Era,  sujyra,  is  to  the  same  effect. 

On  the  other  hand,  we  are  cited  by  counsel  for  appellee  to  a  large 
number  of  cases  which  determine  that,  where  several  connecting 
companies  form  a  through  line,  each  operating  its  own  road,  and 
through  tickets  with  coupons  attached  are  sold  over  the  entire  route 
for  a  single  fare,  there  is  no  joint  liability  by  reason  thereof,  and 
each  carrier  will  only  be  liable  for  defaults  occiirring  on  its  own 
road,  except  that  in  some  States  the  receiving  carrier  is  presumed  to 
contract  for  carriage  over  the  entire  route.  Among  the  cases  cited 
are  the  following:  Ellsworth  v.  Tartt,  26  Ala.  733;  Hood  v.  Rail- 
way Co.,  22  Conn.  12;  Knight  v.  Railway  Co.,  56  Me.  240;  Croft  v. 
Railway  Co.,  1  Mc Arthur,  492;  Kessler  v.  Railway  Co.,  61  IST.  Y. 
538;  Railway  Co.  v.  Roach,  35  Kan.  740;  12  Pac.  Rep.  93.  The 
length  of  this  opinion  forbids  that  we  should  review  these  cases. 

After  a  very  full  and  careful  examination  of  the  subject,  ]\[r. 
Hutchinson,  in  his  work  on  carriers  (page  131),  says:  "From  the 
cases  it  may  be  deduced :  First,  that  where  carriers  over  different 
routes  have  associated  themselves  under  a  contract  for  a  division  of 
the  profits  of  the  carriage  in  certain  proportions,  or  of  the  receipts 
from  it,  after  deducting  any  of  the  expenses  of  the  business,  they 


313  CARRIERS   OF   GOODS. 

become  jointly  liable  as  partners  to  third  persons ;  but  that,  where 
the  agreement  is  that  each  shall  bear  the  expenses  of  his  own  route, 
and  of  the  transportation  upon  it,  and  that  the  gross  receipts  shall 
be  divided  in  proportion  to  distance  or  otherwise,  they  are  partners 
neither  inter  se  nor  as  to  third  persons,  and  incur  no  joint  liability." 
We  think  this  is  a  fair  statement  of  the  rule  of  joint  liability  which 
is  supported  by  the  great  weight  of  authority. 

It  only  remains  to  be  determined  whi^ther  the  evidence  in  this  case 
authorized  the  jury  to  tind  a  joint  liability.  "We  think  it  did.  It 
is  true  there  is  no  express  proof  that  these  defendants  were  partners. 
But  it  is  to  be  remembered  that  the  plaintiff  made  the  best  proof  of 
which  her  case  was  capable.  The  fact  as  to  the  relation  which  these 
companies  sustained  to  each  other,  and  the  impossibility  of  proving 
where  or  on  which  road  the  trunks  were  pillaged;  the  receipt  of  the 
whole  of  the  fare  by  their  joint  agent,  the  Eock  Island  Kailway 
Company ;  the  collection  of  the  charge  for  extra  baggage  at  Kansas 
City;  and  the  fact  that  the  trunks  were  checked  through  and  carried 
to  the  end  of  the  journey  on  the  same  train  witli  Peterson  and  his 
family;  and  the  initials  of  all  of  the  companies  to  each  coupon, 
authorized  a  finding  that  the  undertaking  was  a  joint  transaction, 
at  least  so  far  as  the  rights  of  the  passengers  to  have  their  baggage 
safely  carried  were  involved.  In  our  opinion,  the  case  ought  to 
have  been  submitted  to  the  jury. 

Beversed. 


b.    Dt^Ilccry  to  Conslrjnce. 

swi:i:t  v.  bakxey. 

2:3  N.  Y.  3:55.     18(J1. 

Appeal  from  the  Supreme  Court.  Action  against  the  defendants, 
an  express  company,  as  common  carriers,  to  recover  tlie  amount  of 
a  package  of  money,  received  by  the  defendants,  directed  to  the 
"People's  Hank,  173  Canal  Street,  New  York."  The  defendants  liad 
a  verdict  at  the  circuit,  which  was  affirmed  at  the  (ioneral  Term  of 
the  Supreme  Court  in  the  seventh  district,  and  the  plaintiffs  appealed 
to  this  court. 

The  proof  showed  these  facts:  The  plaintiffs  were  b;nik»-rs  at 
D.insvillQ,  Livingston  County.  They  kept  an  account  witli  the 
]Vo].le's  liank,  in  which  they  were  in  the  hal)it  of  making  deposits 
and  drawing  bills  of  exchange  or  checks  against  the  same.  A  pack- 
Mig  .S2,802  was  delivered  by  them  to  the  defendants, 
.  ..pin's  Bank.  17.3  Canal  Street,  New  York,"  to  be  for- 
warded as  directed.     The   package   was   taken  to  X<  w  "^'ork,   aiul 


DELIVERY  BY  CARRIER.  319 

delivered  at  the  defendant's  office  in  that  city  to  one  Messenger,  an 
employee  of  the  People's  Bank.  INIessenger  was  a  porter  in  the 
People's  Bank,  and  had  been  for  several  years;  was  accustomed  to 
receive  money  brought  by  the  defendant's  company  at  the  bank,  at 
the  Clearing  House  and  at  the  defendant's  office.  Messenger  was 
also  accustomed  to  act  for  the  People's  Bank  in  making  exchanges 
and  collections  with  other  banks ;  and  he  acted  as  its  representative 
at  the  Clearing  House,  at  a  desk  labelled  "People's  Bank;"  had 
there  often  received  packages  of  money  from  the  defendants  ad- 
dressed to  "People's  Bank  "  and  given  receipts  for  the  same  for  said 
bank.  The  defendants'  office  was  in  the  same  building  with  the 
Clearing  House,  and  Messenger  requested  the  defendants  to  keep 
the  packages  for  the  People's  Bank  at  their  office  until  he  called 
for  them.  The  defendants  did  so,  and  Messenger  regularly  called 
for  them  and  received  them,  and  gave  receipts.  In  the  eighteen 
days  previous  to  the  delivery  of  this,  nine  other  packages  for  the 
People's  Bank  were  delivered  to  and  receipted  by  Messenger  with- 
out any  complaint  or  objection  from  the  bank.  After  the  delivery 
to  Messenger  of  the  package  in  question  it  was  stolen  from  him. 

The  plaintiff's  counsel  requested  the  judge  to  charge  the  jury  that 
the  duty  of  the  defendants  was  to  deliver  the  package  at  the  bank  as 
directed,  and  they  were  not  authorized  to  deliver  the  same  to  any 
person  at  any  place  other  than  at  the  bank.  2.  That  neither  the 
bank  nor  the  defendants  were  authorized  to  change  the  mode  of 
■(Jelivery  of  the  package  without  the  consent  or  knowledge  of  the 
plaintiffs;  and  that  such  change,  if  made  without  their  knowledge 
or  consent,  would  not  discharge  the  defendants. 

The  judge  refused  both  of  these  requests,  and  the  plaintiffs'  coun- 
sel excepted  to  such  refusal.  The  judge  charged  that  a  delivery  to 
an  agent  of  the  bank,  authorized  by  it  to  receive  the  package,  at 
any  place  other  than  the  bank,  would  discharge  the  defendant,  to 
which  the  plaintiffs'  counsel  also  excepted. 

James,  J.  That  these  defendants  were  common  carriers  can 
hardly  be  doubted.  Persons  whose  business  it  is  to  receive  pack- 
ages of  bullion,  coin,  bank  notes,  commercial  paper,  and  such  other 
articles  of  value  as  parties  see  fit  to  trust  to  their  care  for  the  pur- 
pose of  transporting  the  same  from  one  place  to  another  for  a  com- 
pensation, are  common  carriers,  and  responsible  as  such  for  the  safe 
delivery  of  property  intrusted  to  them.  Eussell  v.  Livingston,  19 
Barb.  346;  Sherman  v.  Wells,  28  Barb.  403.  Such  was  the  busi- 
ness  of  these  defendants,  and  such  their  responsibility. 

The^onsignee  is  the  presumptive  owner  of  the  thing  consigned; 
and  when  the  carrier  is  not  advised  that  any  different  relation  exists, 
he  is  bound  to  so  treat  the  consignee ;  but  this  presumption  may  be 
rebutted;  and  if  in  an  action  for  non-delivery  by  the  consignor 
against  the  carrier  that  presumption  be  overcome,  the  action  is 
properly  brought  in  the  consignor's  name.     Price  v.  Powell,  3  Comst. 


320  CAPvRIERS   OF    GOODS. 

322.     But  in  this  case,  unless  a  deliverj'of  the  money  be  established, 
the  plaintiffs'  right  to  recover  was  made  out. 

There  was  no  notice  of  the  contents  of  the  package  in  question 
belonging  to  the  consignors;  nor  was  there  any  fact  proved,  calcu- 
lated to  weaken  the  presumption  of  ownership  in  the  consignee. 
The  defendants  were,  therefore,  not  only  authorized,  but  fully  jus- 
tified in  treating  the  consignment  as  the  property  of  the  bank.  The 
defendants  could  not  know  that  they  were  employed  to  make  a 
deposit  in  the  People's  Bank  for  the  benefit  of  the  assignors;  or 
that  this  package  was  entitled  to  or  demanded  a  special  delivery. 
There  wasj  in  fact,  nothing  in  the  transaction  to  advise  them  that 
this  package  was  to  be  treated  differently  from  other  packages 
actually  belonging  to  the  bank;  and,  therefore,  any  delivery  good 
against  the  bank  discharged  the  carrier. 

The  principal  question  then  is,  was  there  a  delivery  good  against 
the  bank;  if  there  was,  the  plaintiffs  must  follow  the  bank;    tliey 
have  no  cause  for  action  against  these  defendants.     It  is  conceded 
that  the  liability  of  a  carrier  begins  with  the  receipt  of  the  goods 
by  him,  and  continues  until  the  delivery  of  the  goods  by  him,  sub- 
ject to  the  general  exceptions.     And  an  express  carrier  is  bound  to 
deliver  the  goods  at  their  destined  place,  to  the  consignee,  or  as  the 
consignee    may  direct.     In    general,   the   delivery  must   be  to  the 
owner  or  consignee  himself,  or  to  his  agent,  11  ^let.  509,  or  they 
must  be  carried  to  his  residence,  or  they  may  be  taken  to  his  place 
of  business,  when  from  the  nature  of  the  parcels  that  is  the  api)ro- 
priate  place  for  their  delivery.     But  there  is  no  rule  of  law  requir- 
ing a  delivery  at  the  consignee's  residence  or  place  of  business  when 
he  is  willing  to  accept  it  at  a  different  place,  or  directs  a  delivery  at 
another  place.     The  consignee,  or  his  authorized  agent,  may  receive 
goods  addressed  to  him  in  the  hands  of  a  carrier  at  any  pl-ace,  eitlier 
before  or  after  their  arrival  at  their  place  of  destination,  and  such 
acceptance  ojjerates  as  a  discharge  of  the  carrier  from  his  liability. 
It  was  held  in  Lewis  v.  The  "Western  Kailroad,  11  Met.  500,  that 
if  A,   for  whom   goods  are  transjiorted,  autliori/es  li  to  receive  a 
delivery  thereof,  and  to  do  all  acts  incident  to  the  delivery  and 
transportation  thereof  to  A,  and  B,  instead  of  receiving  the  goods 
at  the  usual  place  of  delivery,  requests  the  agent  of  the  railroad  to 
permit  the  car  which  contains  the  goods  to  be  hauled  to  a  near  depot 
of  another  company,  and  such  agent  assents  tliercto,  and  assists  B 
in  hauling  the  car  to  such  depot,  and  B  then  requests  and  obtains 
leave  of  that  comjjany  to  use  its  machinery  to  remove  the  goods 
from    the   car  —  tlie    company   that   transported   the   goods    is   not 
an.sworable  for  the  want  of  care  or  skill  in  tlio  jjersons  employed  in 
80  removing  the  goods  from  the  car,  nor  for  the  want  of  strcngtli  in 
the  machinery  used  for  the  removal  of  them,  and  cannot  be  cliarged 
with  any  loss  that  may  happen  in  the  course  of  such  delivery  to  A. 

IlaU  the  consignee  in  this  case  received  tlie  package  in  question  at 


DELIVERY  BY  CAERIER.  321 

the  defendants'  office,  I  think  no  one  wouki  doubt  the  defendants 
were  discharged.  The  case  then  turns  upon  Messenger's  agency. 
If  an  authorized  agent  in  the  premises,  a  delivery  to  him  was  as 
effectual  as  a  delivery  to  the  principal.  The  question  of  agency  was 
a  question  of  fact,  and  was  settled  by  the  verdict  of  the  jury. 

We  think  the  delivery  at  the  office  of  the  defendant  to  the 
authorized  agent  of  the  consignee  was  proper,  and  oj)erated  to 
discharge  the  defendants  from  their  obligations  as  carriers. 

This  disposes  of  the  case  unless  there  was  some  error  committed 
at  circuit  in  submitting  the  question  of  Messenger's  authority  to 
the  jury,  or  in  tlie  court's  refusing  to  charge  as  requested.  I  have 
been  unable  to  discover  any  such  error.  The  evidence  submitted 
was  competent  —  it  was  of  the  most  perfect  and  satisfactory  kind, 
and  not  only  justified,  but  required  the  verdict  rendered.  The  judg- 
ment should  be  affirmed.^ 

1  Da  VIES,  J.,  dissenting. 

The  question  presented  to  our  consideration  in  this  case  is,  whether  the  defendants 
have  performed  the  service  which  they  undertook.  There  is  no  ground  for  the  assump- 
tion that  the  money  transmitted  by  the  defendants  was  the  property  of  the  bank. 
It  was  sent  by  the  plaintiffs  to  be  deposited  with  the  bank  as  their  property,  and  there 
is  no  reason  to  infer  that  it  was  sent  to  pay  an  antecedent  debt.  There  is  no  proof 
that  any  such  debt  existed,  and  it  might  as  well  be  said  that  the  money  of  any  de- 
positor when  set  aside  to  be  deposited  in  a  bank  became  the  property  of  the  bank  and 
ceased  to  be  that  of  the  depositor.  It  is  placed  in  the  bank  for  safety,  and  as  a 
convenient  mode  of  transacting  business  and  for  making  payments  by  the'  depositor, 
by  checks  or  drafts  on  the  bank.  It  could  be  attached  and  reached  as  the  property  of 
the  depositor.  The  ordinary  presumptions  applicable  to  a  consignment  of  property,  as 
to  the  ownership  by  the  consignee,  have  no  application  to  the  present  case.  Have  the 
defendants  performed  the  service  which  they  undertook  ?  It  is  contended~?n  their 
behalf  that  they  have,  because  they  deliveredthe  package  to  an  agent  of  the  bank, 
and,  as  they  assume,  under  such  circumstances  as  would  render  the  bank  liable  to  the 
plaintiffs  for  the  money  transmitted. 

It  would  seem  to  be  a  sufficient  answer  to  this  defence  to  say,  that  such  was  not  the 
contract  made  by  the  defendants  with  the  plaintiffs,  and  that  they  have  no  legal  right 
to  make  a  new  contract,  or  do  something  which  they  contend"  is' equivalent" to  that 
undertaken  to  be  done  by  them  :  there  is  no  pretence  that  the  plaintiffs  were  parties 
to  any  such  modification  of  the  contract,  made  or  had  any  knowledge  of  it,  or  in  any 
manner  assented  to  it.  Nor  can  it  be  alleged  that  the  custom  of  the  defendants  in 
delivering  packages  to  the  parties,  at  places  other  than  the  bank,  can  have  any  effect 
on  the  rights  of  the  plaintiffs.  As  between  the  defendants  and  the  bank  it  has  sic^nifi- 
cance  :  as  to  the  parties  of  the  contract,  it  is  res  inter  alios  acta,  and  the  plaintiff"  are 
not  deprived  of  any  of  their  rights  by  reason  of  it.  Itjs  well  settled,  that  it  is  the 
duty  of  the  carrier,  not  only  to  transport  the  goods  safely  to  the  place  of  delivery  but 
without  any  demand  upon  him  to  deliver  the  same  according  to  the  owners'  directions 
There  is  no  question  that  in  this  case  the  directions  of  the  owners,  the  plaintiffs  were 
to  deliver  this  money  at  the  bank,  at  173  Canal  Street,  to  the  officers  of  the  bank  It 
was  held  m  Hyde  v.  Trent  and  Jersey  Navigation  Company  (5  T.  R.,  389  [260])  that 
a  delivery  to  a  porter  at  an  inn,  to  cany  to  the  consignee,  did  not  discharge  the 
carrier.  That  the  goods  continued  at  the  risk  of  the  carrier  until  a  personal  ddivery 
at  the  house  or  place  of  deposit  of  the  consignee,  and  that  the  porter  to  whom  the 
package  w_as  delivered,  was  the  servant  of  the  carrier.  It  would  follow  in  the  present 
" ~  ■      '^  21 


322  CARRIERS   OF   GOODS. 

BAILEY   v.    HUDSON   RIVER   R.    CO. 
49  N.  Y.  70.     1S72. 

Appeal  from  judgment  of  tlie  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department,  affirming  a  judgment  in  favor  of 
plaintiffs  entered  upon  a  verdict. 

Action  for  the  conversion  of  eleven  cases  of  dry  goods. 

Church,  C.  J.  It  is  undisputed  that  Alden,  Frink  &  "Weston 
delivered  the  goods  in  question  to  the  defendant,  to  be  transported 
by  them  to  the  plaintiifs;  that  they  were  consigned  to  the  plaintiffs, 
and  the  packages  properly  marked  with  the  name  of  the  plaintiffs' 
firm,  and  the  defendant  gave  a  receipt  for  the  same,  agreeing  to 
deliver  the  goods  safely  to  the  plaintiffs  at  the  city  of  New  York. 
It  is  also  undisputed  that  the  plaintiffs  had  made  a  specific  advance 
upon  a  portion  of  the  goods,  and  the  remainder  were  shipped  in 
pursuance  of  an  agreement  between  the  plaintiffs  and  Alden ,  Frink 
&  Weston,  to  pay  for  money  borrowed  by  the  latter  of  the  former  a 
few  days  previous,  and  that  invoices  of  all  the  goods,  stating  the 
consignment  and  shipment  by  the  defendant's  railroad,  had  been 
forwarded  to  the  plaintiffs  by  mail.  This  was  substantially  the 
condition  of  things  on  the  17th  of  October,  when  one  of  the  members 
of  the  firm  of  Alden,  Frink  &  "Weston,  for  his  individual  benefit, 
but  in  the  name  of  his  firm,  changed  the  destination  of  the  goods, 
and  the  defendant  delivered  them  in  pursuance  of  such  changed 
destination  to  another  person.  The  question  is  whether  the  title 
had  vested  in  the  plaintiffs.  I  think  it  had.  It  is  clear  that  the 
consignors  delivered  the  goods  to  the  carrier  for  the  jdaintiffs  in 

case  that  Messenger,  the  j>orter  to  whom  the  defendants  delivered  the  package  in  this 
instance,  is  to  be  regarded  as  the  servant  of  the  defendants.  Prima  facie,  the  carrier 
ia  under  an  obligation  to  deliver  the  goods  to  the  consignee  personally  at  the  place  of 
delivery.  Custom  of  so  general  and  universal  a  character  as  may  warrant  tlie  sup- 
jMisition  that  the  parties  contracted  with  reference  to  it,  may  be  proven  to  vary  the 
manner  of  the  dfliv<Ty  ;  or  the  place  and  manner  of  the  delivery  may  be  varied  by  the 
assent  of  the  owner  of  the  projMrty  ;  and  where  he  interferes  to  control  or  direct  in 
the  matter,  he  assumes  the  resiHjnsibility.  Edwards  on  Hail.,  pp.  515,  519.  In  this 
case  no  general  or  universal  custom  changing  the  carrier's  legal  liability,  of  such  a 
character  as  that  we  may  presume  the  parties  to  have  contracted  in  reference  to  it,  was 
shown  or  pretendt-d.  Neither  was  it  alh-ged  that  the  owners,  the  iilaintilfs,  had  by 
their  assent  in  any  manner  varied  the  carrier's  legal  liability,  or  interfered  in  any  way 
with  the  deliverj-  or  had  any  knowledge  of  the  pnictice  of  the  defendants  in  making 
deliveries  dilferent  from  that  contained  in  the  direction  or  contract,  or  had  given  any 
conw^nt  to  any  other  delivery  or  to  any  change  of  the  legal  liabilities  assumed  by  the 
carrier  on  receipt  of  the  package.  The  arrang<iaent  alleged  to  be  made  between  the 
dvfciidanUi  and  the  bank  or  its  olTicers,  by  which  a  dilHrent  delivery  was  made-  than 
that  embraced  in  the  contract  with  the  idaintiir.H,  can  theref(»re  have  no  binding  tlfect 
D{K)n  the  plaintifTs,  or  in  any  manner  impair  or  adect  tlicir  rights. 


DELIVERY   BY   CARRIER.  323 

compliance  with  their  contract  to  do  so.  The  parol  contract  was 
thereby  executed,  and  the  title  vested  in  the  plaintiffs.  The  plain- 
tiffs occupied  the  legal  position  of  vendees  after  having  paid  the 
purchase-money  and  received  the  delivery  of  the  goods.  13ut  it  is 
unnecessary,  in  order  to  uphold  this  judgment,  to  maintain  that  the 
plaintiffs  occupied  strictly  the  relation  of  vendees.  The  legal  rights 
of  the  vendee  attach  when  goods  are  shipped  to  a  commission  mer- 
chant, who  has  made  advances  upon  them  in  pursuance  of  an  agree- 
ment between  the  parties.  Such  an  agreement  may  be  either  inferred 
from  the  circumstances  or  shown  by  express  contract.  Holbrook  v. 
Wight,  24  Wend.  169;  Haille  v.  Smith,  1  Bos.  &  Pul.  5G3.  In  the 
latter  case,  Eyre,  J,,  said:  "From  the  moment  the  goods  were  set 
apart  for  this  particular  purpose,  why  should  we  not  hold  the  prop- 
erty in  them  to  have  changed,  it  being  in  perfect  conformity  to  the 
agreement  and  such  an  execution  thereof  as  the  justice  of  the  case 
requires  ?  "  The  same  principle  has  been  repeatedly  adopted.  Gros- 
venor  v.  Phillips,  2  Hill,  147. 

It  must  appear  that  the  delivery  was  made  with  the  intent  to 
transfer  the  property.  Until  this  is  done  the  parol  agreement  is 
executory,  the  title  remains  in  the  consignor,  and  he  has  the  power 
to  transfer  the  property  to  whomsoever  he  pleases,  and  render  him- 
self liable  for  the  non-performance  of  the  contract.  It  is  urged  by 
the  counsel  for  the  defendant  that  no  bill  of  lading  was  forwarded 
or  delivered  to  the  plaintiffs,  and  that  until  this  was  done  the  title 
remained  in  the  consignors.  This  is  undoubtedly  true  in  many 
cases;  but  it  is  mainly  important  in  characterizing  the  act  of  the 
shipper,  and  showing  with  what  purpose  and  intent  the  goods  were 
delivered  to  the  carrier.  If  A  has  property,  upon  which  he  has 
received  an  advance  from  B  upon  an  agreement  that  he  will  ship  it 
to  B  to  pay  the  advance  or  to  pay  any  indebtedness,  he  may  or  may 
not  comply  with  his  contract.  He  may  ship  it  to  C  or  he  may  ship 
it  to  B  upon  conditions.  As  owner  he  can  dispose  of  it  as  he  pleases. 
But  if  he  actually  ships  it  to  B  in  pursuance  of  his  contract,  the 
title  vests  in  B  upon  the  shipment.  The  highest  evidence  that  he 
has  done  so  is  the  consignment  and  unconditional  delivery  to  B  of 
the  bill  of  lading.  If  the  consignor  procures  an  advance  upon  the 
bill  of  lading  from  a  third  person,  or  delivers  or  indorses  the  bill 
of  lading  to  a  third  person  for  a  consideration,  it  furnishes  equally 
satisfactory  evidence  that  the  property  was  not  delivered  to  the 
consignee,  for  the  simple  reason  that  it  was  delivered  to  some  one 
else.  But  I  apprehend  that  if  a  consignor  who  had  such  an  agree- 
ment retained  in  his  own  possession  a  duplicate  of  the  bill  of  lading, 
and  notified  the  consignee  by  letter  that  he  had  shipped  the  property 
for  him  in  pursuance  of  the  agreement,  or  in  any  other  manner  the 
intention  thus  to  ship  it  was  evinced,  the  title  would  pass  as  effec- 
tually, as  between  them,  as  if  he  had  forwarded  the  bill  of  lading. 
The  question  whether  a  subsequent  indorsee  of  the  bill  of  ladiu"  for 


324  CARRIERS   OF   GOODS. 

a  valuable  consideration  could  acquire  any  rights  against  the  con- 
signee, is  not  involved.  As  against  the  consignor  the  delivery  of 
the  property  to  the  carrier,  with  intent  to  comply  with  his  contract, 
vests  the  title  in  the  consignee.  It  is  largely  a  question  of  inten- 
tion. In  Mitchell  v.  Ide,  o\)  C.  S.  K.  260,  cited  by  the  defendants, 
Lord  Denman  said:  "The  intention  of  Mackenzie  to  transfer  the 
property  to  the  plaintiff  is  unquestionable,  and  we  think  that  under 
the  circumstances  he  has  carried  that  intention  into  effect."  And 
in  the  Bank  of  Rochester  v.  Jones,  4  X.  Y.  501,  this  court  said: 
••  When  the  bill  of  lading  has  not  been  delivered  to  the  consignee, 
and  there  is  no  other  evidence  of  an  intention  on  the  part  of  the  con- 
signor to  consign  the  specific  property  to  him,  no  lien  will  attach." 
In  that  case  the  bill  of  lading  was  not  only  not  sent  to  the  consignee, 
but  was  transferred  to  the  plaintiffs,  and  money  borrowed  upon  it, 
and  there  was  no  evidence  of  an  intention  to  consign  the  flour  to  the 
defendant  except  upon  the  condition  of  paying  the  money  so  bor- 
rowed. It  should  be  observed  also  that  in  that  case  there  was  no 
agreement  to  consign  the  property  to  the  defendant  as  security,  or 
in  payment  of  the  indebtedness  due  him  from  the  consignor.  Such 
an  agreement,  either  express  or  implied,  is  important,  although  nut 
conclusive,  in  showing  the  intent  with  which  the  act  was  done.  In 
this  case  there  was  no  other  bill  of  lading  than  the  receipt  produced 
in  evidence,  and  no  duplicate  was  taken;  but  the  intL-ntion  of  Aldcn, 
Frink  &  Weston  to  transfer  this  specific  property  to  the  i)laintiffs, 
to  be  applied  upon  their  indebtedness,  conclusively  appears  by  the 
undisputed  evidence.  1.  By  the  agreement  the  day  prior  to  the 
shipment.  2.  By  forwarding  invoices  of  the  shipment  to  the  plain- 
tiffs. 3.  By  making  tlie  shipment  unconditionally.  4.  B}-  retain- 
ing the  receipt  given  by  the  defendant,  and  neither  making  nor 
attempting  to  make  any  use  of  it. 

These  acts  were  so  unequivocal  of  an  intention  to  transfer  the 
property  to  the  plaintiffs  tliat  there  remains  no  room  for  doubt.  The 
moment  these  acts  were  done,  tlie  title  vested  in  the  plaintiffs,  and 
the  consignors  were  powerless  to  interfere  with  tlie  i)ropt'rty. 

Tlie  recent  case  of  the  Cayuga  County  National  Bank  v.  Daniels 
Tnot  reported)  was  decided  against  the  consignees  upon  the  distinc- 
tion above  referred  to.  It  was  held  in  that  case  that  the  consignors 
did  not  deliver  the  property  to  the  carrier  with  the  intention  to  vest 
the  title  in  the  defendants,  except  upon  condition  of  paying  a  draft 
discounted  by  the  plaintiffs,  and  that  the  bill  of  lading  was  delivered 
upon  that  condition,  and  that  on  the  defendants'  refusal  to  comjily 
with  the  condition  they  acfjuirt-d  no  right  or  title  to  the  jtrojierty, 
and  that  the  case  therefore  came  within  the;  jirinciple  of  the  l!ank  of 
Rochester  v.  Jones,  supra.  Here  the  intention  to  vest  the  title  is 
clear  and  plain.  It  is  urged  that  the  words  *'on  our  account."  in 
the  invoices,  cvineed  an  intention  not  to  vest  the  title  in  the  ])laiii- 
tiff.s.     They  can  have  no  such  effect  in  this  case,  even  if  standing 


DELIVERY   BY  CARRIER.  325 

alone  and  unexplained  they  might  have.  A  bill  of  lading  for  which, 
as  between  the  parties,  the  invoices  were  a  substitute,  can  always 
be  explained  by  parol.  It  may  be  shown  by  parol  to  have  been 
intended  as  evidence  of  an  absolute  sale,  a  trust,  a  mortgage,  a 
pledge,  a  lien,  or  a  mere  agency.  2  Hill,  151;  4  N.  Y.  501,  and 
cases  cited.  The  actual  agreement  and  transaction  will  prevail,  and 
it  was  proved  by  two  of  the  members  of  the  firm,  and  uncontra- 
dicted, that  the  goods  were,  in  fact,  shipped  in  pursuance  of  the 
agreement.  Besides,  these  words  are  not  necessarily  inconsistent 
with  the  agreement.  The  goods  were  not  purchased  absolutely  by  the 
plaintiffs  at  a  specified  price,  but  were  to  be  sold  and  the  avails  ap- 
plied. The  relation  of  the  plaintiffs  was  more  nearly  that  of  trustee, 
having  the  title,  and  bound  to  dispose  of  the  property  and  apply  the 
proceeds  in  a  particular  manner,  and  the  consignors  were  the  cestuis 
que  trust,  having  the  legal  right  to  enforce  the  terms  of  the  agree- 
ment for  their  benefit.  In  this  sense  the  property  was  shipped  on 
their  account,  and  the  agreement  is  consistent  with  the  meaning  of 
those  words.  The  Statute  of  Frauds  has  no  application.  1st.  There 
was  no  sale.  2d.  If  there  was,  the  consideration  was  paid.  3d. 
The  property  was  specified  when  the  agreement  was  made  as  being 
that  which  had  been  and  was  then  being  shipped,  and  the  plaintiffs 
agreed  to  accept  that  particular  property,  and  the  subsequent 
delivery  to  the  carrier  agreed  upon  was  in  legal  effect  a  delivery  to 
the  plaintiffs.  Cross  v.  O'Donnell,  44  N.  Y.  661;  Stafford  v.  Webb, 
Lalor's  Sup.,  217. 

The  defendant  is  liable  for  a  conversion  of  the  property.  It  had 
receipted  the  property  and  agreed  to  transport  safely,  and  deliver 
it  to  the  plaintiffs.  Instead  of  complying  with  its  contract,  it 
delivered  the  property  to  another  person  by  the  direction  of  one  who 
had  no  more  legal  authority  over  the  property  than  a  stranger,  with- 
out the  return  even  of  its  receipt.  The  plaintiffs  had  vested  rights 
which  the  defendant  was  bound  to  respect,  and  with  a  knowledge  of 
which  it  was  legally  chargeable.  45  X.  Y.  49;  6  Hill,  oSQ>;  24 
Wend.  169;  Story  on  Bailment,  414;  31  N.  Y.  490.  It  Avas  its  duty 
to  deliver  the  property  to  the  real  owner.     45  X.  Y.  34. 

Judgment  affirmed  with  costs. 


AEMENTROUT  v.    ST.    LOUIS  K.    C.    &  N.    E.    CO. 

1  Mo.  App.  158.     1876. 

Blackwell,  J.  Plaintiff  sues  defendant,  a  common  carrier,  for 
breach  of  contract  of  affreightment,  in  not  fulfilling  its  undertaking 
with  plaintiff  that  it  Avould  securely  keep  and  safely  carry  over  its 
road,  from  Ottumwa,  Iowa,  to  St.  Louis,  Missouri,  and  in  reason- 
able  time  securely  deliver  to  plaintiff's   agent,   in  St.  Louis,  100 


326  CARRIERS   OF   GOODS. 

boxes  of  eggs,  whereby  said  eggs  were  totally  lost  to  plaintiff,  as  he 
alleges,  to  his  damage  S2,U0U. 

The  ease  was  tried  by  the  court,  a  jury  being  waived  upon  the 
following  agreed  statement  of  facts. 

Plaintiff  bought  the  100  boxes  of  eggs  in  question  of  McCullough 
&  Lilburn,  at  Ottumwa,  Iowa,  at  the  price  of  61,528.04;  he  paid  SIO 
in  cash,  and  agreed  with  McCullough  &  Lilburn  that  for  the  balance 
of  the  purchase  price  they  should  draw  against  the  shipment  on 
Bussy  &  Co.,  at  St.  Louis,  witli  the  bill  of  lading,  or  receipt  therefor 
of  defendant,  attached;  of  all  which  defendant  had  no  knowledge. 

Bussy  &  Co.  were  the  commission  merchants  of  plaintiff,  to  sell 
said  eggs  for  plaintiff's  account  on  arrival,  and  had  no  other  interest 
in  said  eggs  or  the  proceeds. 

That  on  November  25,  1872,  McCullough  &  Lilburn  accordingly 
delivered  said  eggs  to  defendant  at  C>ttuniwa,  Iowa,  and  took  its  bill 
of  lading,  or  receipt,  therefor,  which  is  on  file  in  this  cause,  and 
may  be  read  in  evidence  by  plaintiff. 

That  thereupon  George  McCullough,  one  of  the  firm  of  McCullough 
&  Lilburn,  requested  defendant  to  hold  said  eggs  until  ordered  by 
them  to  be  sent  forward,  the  particulars  of  that  transaction  being 
set  forth  in  an  affidavit  of  one  Phillipps,  as  follows :  — 

"On  the  morning  of  November  25,  1872,  George  McCullough  came 
to  my  office,  in  (Jttumwa,  and  requested  bill  of  lading  for  100  boxes 
of  eggs,  to  be  shii)ped  to  Bussy  &  Co.,  St.  Louis,  and  not  load  till 
following  day.  This  I  refused.  The  eggs  were  loaded  the  same 
day,  November  25th,  and  George  McCullough  requested  car  to  be 
held  at  their  risk  until  draft  was  accepted.  Afternoon  of  November 
27th  he  gave  order  to  forward  car,  which  was  done  on  first  train, 
morning  of  2Sth,  a.m.,  car  798." 

This  request  to  hold  and  agreement  to  take  all  risk  was  made 
verbally. 

That  on  November  25,  1872,  said  ^SlcCullough  &  Lilburn  drew 
their  draft  on  Bussy  »&  Co.,  for  said  sum  of  $1,518.04,  with  said  bill 
of  lading,  or  receipt,  attached;  that  the  same,  with  bill  of  lading, 
or  receipt,  attached,  were  ])resented  to  Messrs.  Ikissy  &  Co.,  for  ac- 
ceptance, on  November  27,  1872,  and  the  draft  was  by  them  accepted, 
and  paid  by  them  on  November  .30,  1872,  and  charged  to  account  of 
plaintiff,  as  jdaintiff  and  lUis.sy  &  Co,  had  agreed  it  sliould  be,  and 
said  draft  is  annexed  hereto,  and  may  be  read  in  evidence  herein. 

That  on  November  28,  1872,  McCullough  ^:  Lilljurn  directed 
defendant  to  forward  the  eggs  to  the  consignees,  Bussy  &  Co.,  at 
St.  Louis,  and  it  was  at  once  done.  They  arrived  at  St.  Louis  at 
10  A.M.,  on  Sunday,  December  1st,  being  a  reasonable  time  after 
being  forwarded,  and  notice  of  their  arrival  was  given  to  liussy  it 
Co.  on  Monday,  December  2d,  as  soon  as  could  be  done  after  their 
arrival;  and  tliat  three  days  is  amjde,  and  the  usual  time  for  freight 
to  be  carried  from  Ottumwa  to  St.  Lotiis. 


DELIVERY   BY   CARRIER.  327 

That  Bussy  &  Co.  had  sold  said  eggs,  to  arrive  on  November  30th, 
at  the  price  of  $1,641.78,  but,  owing  to  the  eggs  having  been  frozen, 
they  were  sold  to  the  best  advantage,  for  $1,156.62;  the  said  price 
of  $1,641.78  being  the  usual  and  market  price  thereof  in  St.  Louis, 
and  said  sale  being  lost  because  the  eggs  were  so  frozen. 

That  said  eggs  were  so  frozen  because  of  the  extreme  cold  weather 
on  the  route,  and  they  would  not  have  been  frozen  if  sent  forward 
on  November  25,  1872. 

That  defendant  had  no  knowledge  of  the  interest  of  any  one  in  the 
eggs,  other  than  that  of  the  consignor,  except  that  shown,  if  any, 
by  the  receipt,  or  bill  of  lading,  and  by  the  affidavit  of  Phillipps. 

That  plaintiff,  by  his  commission  merchants,  Bussy  &  Co.,  con- 
signees, paid  defendant  the  freight,  $64,  on  said  shipment,  on  its 
arrival  in  St.  Louis. 

The  bill  of  lading  is  in  the  usual  form,  and  sets  forth  that,  on 
November  25,  1872,  the  date  of  the  bill,  there  was  received,  in  good 
order,  at  Ottumwa,  by  defendants,  from  McCullough  &  Lilburn,  to 
be  delivered  to  Messrs.  Bussy  &  Co.,  at  16  South  Commercial  Street, 
St.  Louis,  Missouri,  100  boxes  of  eggs,  marked  "M.  &  L.,  Ottumwa, 
Iowa,  for  Bussy  &  Co.,  St.  Louis,  Missouri." 

The  court  found  for  defendant.  Plaintiff  duly  excepted;  and, 
his  motion  for  a  new  trial  being  overruled,  the  case  is  brought  here 
by  appeal. 

On  this  statement  of  facts  the  plaintiff  was,  in  our  opinion, 
entitled  to  recover.  The  delivery  to  the  defendant,  under  the  cir- 
cumstances stated,  vested  the  goods  in  the  consignee;  the  defendant 
was  from  that  moment  liable  to  plaintiff,  and  its  liability  was  that 
of  a  common  carrier,  and  not  that  of  a  warehouseman.  The  goods 
were  injured  by  an  exposure  which  would  not  have  occurred  had  the 
goods  been  forwarded  without  delay;  and  the  delay  which  occasioned 
the  damage  was  wholly  unauthorized  by  the  consignee,  or  his  agent, 
and  occurred  at  the  direction  or  suggestion  of  a  third  party  who  had 
no  legal  right  whatever  to  control  the  goods. 

These  principles  may  be  taken  to  be  now  well  settled,  and  it  is 
too  late  to  attempt  to  change  them.  They  are  also  consonant  with 
common-sense  and  the  recognized  customs  of  trade  in  this  country. 
A  bill  of  lading  is  taken  by  the  consignor.  It  is  a  statement  of  the 
carrier  to  the  effect  that  he  has  received  a  certain  weight  or  quantity 
of  a  certain  description  of  merchandise,  to  be  forwarded  with  all 
reasonable  despatch  to  a  certain  person  named  in  the  bill.  To  this 
bill  of  lading  is  attached,  as  in  this  instance,  a  draft  on  the  con- 
signee for  the  value  of  the  goods,  which  is  forwarded  by  the  shipper 
to  his  agent  at  the  point  of  consignment,  for  presentation  to  the 
consignee  for  acceptance  and  payment.  This  draft  and  bill  of  lad- 
ing attached  arrive,  in  the  course  of  mail,  before  the  goods,  and  are 
the  assurance  of  the  consignee  that  the  goods  are  on  the  way.  On 
the  faith  of  the  bill  of  lading  he  accepts  and  pays  the  draft.     It  is, 


328  CARRIERS   OF   GOODS. 

therefore,  conclusive  on  the  carrier  as  to  persons  who  have  acted  on 
the  faith  of  his  contract,  and  he  will  not  be  allowed  to  modify-  it 
without  their  consent.  Any  other  rule  would  be  destructive  of  com- 
merce. "What  commission  merchant  would  be  safe  in  accejitiug 
drafts  drawn  against  shipments;  what  bank  would  take  bills  of  lad- 
ing as  collaterals,  and  make  the  necessary  advance  upon  them,  if 
the  shipper,  at  will,  could  forward  the  bill  of  lading  and  detain 
the  goods?  If  the  carrier,  in  this  instance,  could  have  detained  the 
goods  at  the  request  of  the  consignor,  after  the  bill  of  lading  Avas 
out,  until  the  draft  was  heard  from,  he  might,  with  equal  safety  to 
himself,  have  given  back  the  goods  to  the  shipper  after  the  accept- 
ance of  the  draft  by  the  consignee.  The  vendor,  in  the  case  stated, 
had  no  such  rights  over  these  goods  as  he  attempted  to  exercise. 
From  the  moment  thej^  were  received  by  the  carrier  he  parted  with 
all  right  to  control  them  in  any  way,  except  the  right  to  stop 
them,  before  they  reached  their  destination,  in  the  sole  case  of  the 
insolvency  of  the  consignee. 

There  was  something  said  in  argument  as  to  this  being  a  case  of 
injury  by  the  act  of  God.  The  severe  cold  which  injured  the  eggs 
could  not  have  been  prevented,  nor,  perhaps,  foreseen,  by  man;  but, 
if  the  carrier  had  done  his  duty,  the  goods  would  have  arrived  at 
their  destination  before  the  frost.  The  carrier  is  liable  for  a  loss 
arising  from  an  inevitable  necessity'  existing  at  the  time  of  the  loss, 
if  guilty  of  previous  misconduct  or  negligence  by  which  the  exposure 
which  resulted  in  the  loss  was  occasioned. 

For  the  reason  stated  the  judgment  of  the  court  below  must  be 
reversed.  But,  inasmuch  as  every  fact  necessary  to  a  final  judgment 
in  favor  of  plaintiff  would  appear  to  be  fully  set  out  in  the  agreed 
statement  of  facts,  it  does  not  seem  necessary  to  remand  the  cause 
for  a  new  trial,  and  we  accordingly  give  judgment  here  for  plaintiff 
for  §721,  being  the  difference  between  the  amount  for  which  the 
eggs  were  sold  to  best  advantage,  on  tlieir  arrival,  and  the  sale 
which  was  lost  by  tlie  default  of  defendant,  after  adding  thereto 
interest  from  the  date  of  the  commencement  of  the  suit  to  the  entry 
of  judgment  here.     The  other  judges  concur. 


McEXTEE   V.  NEW   JERSEY   STEAMBOAT   CO. 

•ir^N.  Y.  31.     1S71. 

Action  for  the  conversion  of  goods,  brought  by  ^rcEntee  against 
the  New  Jersey  Steamboat  Company.  It  ai)i)eared  that  defendant, 
as  common  carriers,  received  in  ISGS,  at  Albany,  several  Imndlos  of 
siwh  and  blinds  from  one  Saycr,  addressed  to  "  I^IrEntof,"  New 
York.     The  goods  having  reached  thfir  .l.stiiKition,  a  demand  was 


DELIVERY   BY   CARRIER.  329 

made  by  plaintiff  upon  defendant,  who  refused  to  deliver  them,  upon 
tender  of  charges.  There  was  conflicting  evidence  as  to  what  the 
form  of  the  refusal  was ;  but  defendant  introduced  testimony  tend- 
ing to  show  that  a  delivery  was  offered  on  condition  that  plaintiff 
would  produce  any  paper  showing  ownership  or  authority  to  receive 
the  goods,  or  his  identity  as  the  consignee.  The  judge  ruled  that 
the  only  question  for  the  jury  was  whether  freight-money  was  ten- 
dered, and  charged  that,  under  the  circumstances,  the  company  was 
authorized  to  deliver  the  goods  to  any  person  calling  for  them;  and 
that  common  carriers  are  not  responsible  for  wrong  delivery,  and 
therefore  had  no  right  to  insist  upon  any  person  proving  ownership. 
Verdict  was  rendered  for  plaintiff,  and  judgment  thereon  affirmed 
at  general  term.  An  appeal  was  taken  by  defendant  to  this 
court. 

Allen,  J.  The  defendants  were  charged  for  the  conversion  of 
the  goods  upon  evidence  of  a  demand  and  a  refusal  to  deliver  them. 
If  the  demand  was  by  the  person  entitled  to  receive  them,  and  a 
refusal  to  deliver  was  absolute  and  unqualified,  the  conversion  was 
sufficiently  proved,  for  such  refusal  is  ordinarily  conclusive  evidence 
of  a  conversion;  but,  if  the  refusal  was  qualified,  the  question  was, 
whether  the  qualification  was  reasonable;  and  if  reasonable  and  made 
in  good  faith,  it  was  no  evidence  of  a  conversion.  Alexander  v. 
Southey,  5  B.  &  Aid.  247;  Holbrook  v.  Wight,  24  Wend,  169; 
Eogers  v.  Weir,  34  N.  Y.  463;  Mount  v.  Derick,  5  Hill,  455.  If, 
at  the  time  of  the  demand,  a  reasonable  excuse  be  made  in  good 
faith  for  the  non-delivery,  the  goods  being  evidently  kept  with  a 
view  to  deliver  them  to  the  true  owner,  there  is  no  conversion. 

This  action  is  not  upon  the  contract  of  the  carriers,  but  for  a 
tortious  conversion  of  the  property;  but  the  rights  and  duties  of 
the  defendants  as  carriers  are,  nevertheless,   involved. 

The  defendants  were  bailees  of  the  property,  under  an  obligation 
to  deliver  it  to  the  rightful  owner.  They  would  have  been  liable 
had  they  delivered  the  goods  to  the  wrong  person.  Common  car- 
riers deliver  property  at  their  peril,  and  must  take  care  that  it  is 
delivered  to  the  right  person,  for  if  the  delivery  be  to  the  wrong 
person,  either  by  an  innocent  mistake  or  through  fraud  of  third 
persons,  as  upon  a  forged  order,  they  will  be  responsible,  and  the 
wrongful  delivery  will  be  treated  as  a  conversion.  Hawkins  v. 
Hoffman,  6  Hill,  586;  Powell  v.  INIyers,  26  Wend.  290;  Devereux 
V.  Barclay,  2  B.  &  Aid.  702;  Guillaume  v.  Hamburgh  and  Am. 
Packet  Co.,  42  N.  Y.  212;  Duff  v.  Budd,  3  Brod.  and  Bing.  177. 
The  duties  of  carriers  may  be  varied  by  the  differing  circumstances 
of  cases  as  they  arise ;  but  it  is  their  duty  in  all  cases  to  be  diligent 
in  their  efforts  to  secure  a  delivery  of  the  property  to  the  person 
entitled,  and  they  will  be  protected  in  refusing  delivery  until  reason- 
able evidence  is  furnished  them  that  the  party  claiming  is  the  party 
entitled,  so  long  as  they  act  in  good  faith  and  solely  with  a  view  to 


330  CARRIERS   OP   GOODS. 

a  proper  delivery.  The  circumstances  of  this  case,  the  very  defec- 
tive address  of  the  parcels,  and  the  omission  of  the  plaintiff  to  pro- 
duce any  evidence  of  title  to  the  property  or  identifying  him  as 
the  consignee,  justified  the  defendants  in  exercising  caution  in  the 
delivery,  and  it  should  have  been  submitted  to  the  jury  whether 
the  refusal  was  qualified,  as  alleged  by  the  defendants;  and  if  so, 
whether  the  qualification  was  reasonable,  and  was  the  true  reason 
for  not  delivering  the  goods.  The  judge  also  erred  in  his  instruc- 
tions to  the  jury  as  to  the  duty  of  the  defendants,  as  common  car- 
riers, in  the  delivery  of  goods.  They  may  not  properly,  or  without 
incurring  liability  to  the  true  owner,  deliver  goods  to  any  person 
who  calls  for  them,  other  than  the  rightful  owner.  The  judgment 
must  be  reversed  and  a  new  trial  granted,  costs  to  abide  event. 


c.    Delivery  to  Holder  of  Bill  of  Lading. 

rEXXSYLVANlA   K.    CO.    v.    STERN   &   SPIEGEL. 
119  Tenu.  St.  24.     18sS. 

Mr.  Justice  Paxsox.  The  only  error  assigned  is  to  the  charge  of 
the  court.  It  was  in  substance  that  the  defendant  company  could 
only  deliver  the  merchandise  upon  the  production  of  the  bill  of  lad- 
ing, and  that  as  there  was  nothing  to  excuse  delivery  without  a 
compliance  with  the  terms,  the  jury  should  find  for  the  plaintiffs. 

We  see  no  error  in  this.  The  plaintiffs  shijiped  this  car-load  of 
dry  bones  from  Bay  City,  Michigan,  to  Landenburg,  Chester  Co., 
Penn.,  consigned  to  themselves.  At  the  same  time  they  drew  on 
Whann  for  the  amount,  at  forty-five  days.  There  was  a  bill  of  lad- 
ing attached  to  the  draft  showing  that  Stern  &  Spiegel, the  shi]ii)crs, 
had  consigned  said  car  to  themselves.  The  letter  of  the  latter  to 
Whann,  and  the  invoice,  both  of  which  were  shown  to  the  agent  of 
the  defendant  company  at  Landenburg,  were  notice  that  there  was  a 
draft  and  bill  of  lading,  and  that  Whann  was  required  to  i)rotect  the 
draft.  The  agent  delivered  the  car  to  Whann  without  the  bill  of 
lading,  and  without  an  acceptance  of  the  draft.  This  he  had  no 
right  to  do.  The  title  to  the  property  remained  in  the  consignors 
until  delivery  in  accordance  with  the  conditions.  Bills  of  lading 
are  symbols  of  i)roperty,  and  when  properly  indorsed  ojjcrate  as  a 
delivf-ry  of  the  property  itself,  investing  the  iudorsers  with  a  con- 
Htnictive  custody,  which  serves  all  the  [)uri)Oses  of  an  actual  jtosses- 
»ion,  and  so  continues  until  there  is  a  valid  and  comjjlete  delivery 
of  the  projKTty  under  and  in  jiursuance  of  the  bill  of  lading,  and  to 
the  i>er»on8  entitled  to  receive  the  same:  Hieskdl  r.  National  Bank, 


DELIVERY   BY   CARRIER.  331 

91  U.  S.  618.  There  could  be  no  delivery  except  in  accordance 
-with  the  bill  of  lading.  Dows  v.  Milwaukee  Bank,  91  U.  S.  618  j 
Stollenwerck  v.  Thatcher,  115  Mass.  224.  The  invoice  standing 
alone  furnishes  no  proof  of  title:  Benjamin  on  Sales,  sec.  332 j 
Dows  V.  Milwaukee  Bank,  supra. 

It  was  argued,  however,  that  there  was  a  course  of  dealing  be- 
tween the  parties  that  would  take  the  case  out  of  the  rule  above 
stated.  The  attention  of  the  court  below  does  not  appear  to  have 
been  called  to  this  matter  upon  the  trial.  Xo  reference  to  it  is  to 
be  found  in  the  charge,  nor  was  any  point  submitted  which  would 
call  it  forth.  There  was  evidence  that  the  defendant  company  had 
on  more  than  one  occasion  delivered  goods  from  the  shippers  to 
Whaun  prior  to  the  acceptance  of  the  drafts.  No  harm  came  of  this 
because  the  drafts  were  afterwards  accepted  and  paid.  But  this 
course  of  dealing  between  the  company  and  Whann  was  not  brought 
home  to  the  knowledge  of  the  plaintiffs  in  a  way  that  would  justify 
the  jury  in  finding  that  they  had  acquiesced  in  such  an  arrangement, 
and  that  they  had  consented  to  the  delivery  of  this  particular  car- 
load without  the  production  of  the  bill  of  lading  and  acceptance  of 
the  draft.  The  company  delivered  in  their  own  wrong  and  assumed 
the  risk. 

Nor  can  we  say  as  matter  of  law  that  plaintiffs  suffered  no  loss  by 
reason  of  the  improper  delivery.  If  the  draft  had  been  accepted  it 
might  have  been  paid,  notwithstanding  the  failure  of  Whann,  or  the 
plaintiffs  might  have  sold  it  without  recourse. 


Judgment  affirmed. 


WEYAND  V.   ATCHISON,  T.   &   S.    F.    R.    CO. 

75  Iowa,  573.     1888. 

This  is  an  action  aided  by  attachment,  brought  to  recover  the  value 
of  a  quantity  of  canned  goods,  shipped  by  the  Elgin,  Iowa,  Canning 
Company  to  Pueblo,  Colorado,  and  alleged  to  have  been  delivered 

1  It  is  no  excuse  for  a  delivery  to  the  wrong  persons  that  the  indorsee  of  the  bills 
of  lading  was  unknown,  if  indeed  he  was,  and  that  notice  of  the  arrival  of  the  [goods] 
could  not  be  given.  Diligent  inquiry  for  the  consignee,  at  least,  was  a  duty,  and  no 
inquiry  was  made.  Want  of  notice  is  excused  when  a  consignee  is  unknown,  or  is 
absent,  or  cannot  be  found  after  diligent  search.  Fisk  v.  Newton,  1  Denio,  45  ; 
Peytona,  2  Curtis,  21.  And  if,  after  inquiry,  the  consignee  or  the  indorsee  of  a  bill  of 
lading  for  delivery  to  order  cannot  be  found,  the  duty  of  the  carrier  is  to  retain  the 
goods  until  they  are  claimed,  or  to  store  them  prudently  for  and  on  account  of  their 
owner.  He  may  thus  relieve  himself  from  a  earner's  responsibility.  Galloway  v. 
Hughes,  1  Bailey,  553  ;  1  Conklin's  Admiralty,  196  ;  Fisk  v.  Newton,  supra.  He  has 
no  right  under  any  circumstances  to  deliver  to  a  stranger.  Justice  Strong,  in  The 
Thames,  14  Wall.  98. 


332  CARRIERS   OF   GOODS. 

to  a  person  not  entitled  to  receive  the  same,  through  the  fault  of 
defendant.  The  cause  was  tried  to  the  court,  and  a  judgment  ren- 
dered in  favor  of  the  plaintiff  for  the  amount  admitted  to  be  the 
value  of  the  goods  in  controversy,  and  sustaining  the  attachment. 
Defendant  appeals.  On  the  iirst  submission  of  this  cause  a  decision 
was  rendered  by  this  court  reversing  the  judgment  of  the  Superior 
Court.  A  rehearing  was  ordered  on  the  petition  of  appellee,  and 
the  cause  again  submitted. 

RoBiNsox,  J.  Plaintiff  is  the  trustee  of  the  Elgin,  Iowa,  Can- 
ning Company.  Defendant  is  a  corporation  organized  and  existing 
under  the  laws  of  the  State  of  Kansas,  and  engaged  in  operating  a 
line  of  railway  from  Kansas  City  through  the  States  of  Kansas  and 
Colorado,  and  to  the  city  of  Pueblo,  in  the  last-named  State.  At 
the  time  this  cause  was  tried  in  the  court  below,  defendant  had  never 
owned  nor  operated  any  railway  within  the  State  of  Iowa.  In 
October,  1884,  one  Evans,  of  Pueblo,  ordered  of  the  canning  com- 
pany the  goods  in  controversy.  Not  being  acquainted  with  Evans, 
and  not  wishing  to  sell  the  goods  on  credit,  it  delivered  them, 
marked  and  consigned  to  itself  at  Pueblo,  to  a  railway  company  at 
Elgin,  Iowa.  From  that  company  the  canning  company  took  two 
receipts  or  bills  of  lading,  which  were,  in  fact,  duplicates,  but  neither 
showed  that  the  other  had  been  issued.  The  canning  company  drew 
a  draft  on  Evans,  through  a  bank  in  Pueblo,  for  the  price  of  the 
goods,  and  sent  to  the  bank  an  order  on  defendant  to  deliver  the 
goods  to  Evans.  The  draft  and  order  were  sent  together  to  the  bank, 
with  instructions  to  deliver  the  order  to  Evans  upon  payment  bj'  him 
of  the  draft.  At  the  same  time  the  canning  company  sent  to  Evans 
one  of  the  bills  of  lading,  instructing  him  that  the  goods  had  been 
shipped,  and  that  he  was  to  pay  the  draft  and  obtain  the  order. 
The  bill  of  lading  sent  to  Evans  was  not  signed  nor  indorsed  by  the 
canning  company.  In  due  time  the  goods  were  transferred  by  tlie 
railway  company  which  first  received  them  to  defendant,  and  were 
b}-  it  transferred  to  Pueblo.  Evans  never  paid  the  draft  nor  obtained 
the  order,  but  within  twenty-four  hours  after  the  arrival  of  the 
goods  in  Pueblo  he  presented  the  bill  of  lading  which  he  had  received 
to  defendant,  and  without  other  authority  obtained  the  goods.  At 
that  time  Evans  was  insolvent,  but  defendant  had  no  knowledge  of 
that  fact,  nor  that  the  goods  had  not  been  i)aid  for,  nor  that  a  draft 
and  order  had  been  sent  or  instructions  given  in  regard  to  the  goods, 
but  delivered  them  in  good  faith.  .  .  . 

II.  Appellant  insists  that  it  was  not  in  fault  in  delivering  tlie 
goods  to  Evans,  for  tlie  reason  that  the  delivery  to  him  of  the  bill  of 
lading  was  in  effect  an  assignment  of  the  goods,  and  invested  him 
witli  a  right  to  demand  and  receive  them.  We  are  referred  to  many 
authorities  whieh  are  claimed  tf)  support  this  vi«*w.  One  of  these  is 
Merchants'  Hank  r.   Union   Ky.  &  Trans.  Co. ,  r.'j  N.   V.  ;;7l.     An 


\ 


DELIVERY  BY  CARRIER.  333 

examination  of  that  case  and  the  cases  therein  cited  will  show  that 
what  the  court  really  decided  was  that  a  delivery  of  the  forwarder's 
receipt  without  assignment,  but  with  intent  that  the  title  to  the 
goods   for  which   it  was  given,  or  an  interest  therein,   should  be 
thereby  transferred,  would  be  effectual  to  accomplish  the  transfer 
intended.     Other   authorities   cited   by  appellant   are  to  the  same 
effect.     In  this  case  it  was  the  intention  of  the  canning  company  to 
retain  the  title  and  right  of  possession  in  itself  until  the  price  of 
the  goods  should  be  paid.     The  bill  of  lading  required  the  delivery 
of  the  goods  to  the  consignor.     It  did  not  provide  for  delivery  to 
bearer  or  order,  but  to  the  Elgin  Canning  Company.     Therefore  it 
is  clear  that  the  forwarding  of  the  bill  of  lading  to  Evans,   with 
directions  to  pay  the  draft  and  obtain  the  order  for  the  goods,  did 
not  invest  him  with  any  right  to  the  goods  as  against  the  consignor. 
But  it  is  said  that  defendant  was  justified  in  delivering  the  goods  to 
Evans  because  of  his  possession  of  the  bill  of  lading.     The  cases  of 
Lickbarrow  v.   Mason,  1  Smith,   Lead.  Cas.  *838,  with  annotations; 
Dows   V.  Green,  24  N.  Y.  638;  Allen  v.  Williams,  12  Pick.  297,  and 
others,  are  cited  in  support  of  this  claim.     It  is  true  that  statements 
were  made  in  some,  if  not  all,  of  those  cases  which,  considered  apart 
from  the  connection  in  which  they  are  found,  might  seem  to  sustain 
the  claim ;  but  when  they  are  considered  in  connection  with  the  facts 
of  the  cases  where  found,  and  the  general  conclusions  of  the  court 
which  made  them,  we  think  they  go  no  further  than  to  hold  that 
the  delivery  of  an  unindorsed  bill  of  lading  would  be  a  good  sym- 
bolical delivery  of  the  goods   it  represented,  where  such  was  the 
intent  and  purpose  of  the  parties.     In  Fearon  v.  Bowers,  reported 
in  1  Smith,  Lead.  Cas.  *782,  cited  by  appellant,  the  consignor  had 
sent  two  bills  of  lading,  one  of  which  was  indorsed  to  one  person 
and  the  other  to  another,  and  the  court  held  that  a  delivery  might 
be  made  to  the  holder  of  either  bill.     That  case  has  but  little  rela- 
tion to  the  principle  involved  in  this.     Appellant  insists  that  the 
bill  of  lading  is  like  a  promissory  note,  in  that  possession  is  2>rima 
facie  evidence  of  ownership;  but  we  do  not  think  that  such  is  the 
case.     A  bill  of    lading  is  a  non-negotiable    instrument.     Garden 
Grove  Bank  v.  Humeston  &  S.  Ry.  Co.,  67  Iowa,  534.     The  follow- 
ing language  is  pertinent:  "Bills  of  lading  are  regarded  as  so  much 
cotton,  grain,  iron,  or  other  articles  of  merchandise.  .   .   .  They  are 
in   commerce   a  very  different  thing  from   bills  of   exchange  and 
promissory  notes,  answering  a  different  purpose  and  performing  a 
different  function."     Also:   "It  is  not  a  representative  of  money, 
used  for  transmission  of  money  or  for  the  payments  of  debts  or  for 
purchases.     It  does  not  pass  from  hand  to  hand  as  bank-notes  or 
coin.     It  is  a  contract  for  the  performance  of  a  certain  duty.     True, 
it  is  a  symbol  of  ownership  of  the  goods  covered  by  it,  — a  represen- 
tative of  those  goods;  but  if  the  goods  themselves  be  lost  or  stolen, 
no  sale  of  them  by  the  finder  or  thief,  though  to  a  bona  fide  pur- 


334  CAKKIEFwS   OF   GOODS. 

chaser  for  value,  will  divest  the  ownership  of  the  person  who  lost 
them,  or  from  whom  they  were  stolen.''  Shaw  i;.  Railroad  Co.,  101 
U.  S.  557.  See,  also,  Hutch.  Carr.  sec.  348.  In  2  I'ars.  Cout.  292, 
it  is  said:  "The  consignor  frequently  sends  to  a  consignee  a  bill  not 
indorsed,  and  then  sends  to  his  own  agent  in  or  within  reach  of  the 
same  port  an  indorsed  bill,  —  it  may  be  indorsed  in  blank,  or  to  the 
agent,  or  to  the  party  ordering  the  goods, —  and  the  consignor  sends 
to  his  agent  with  the  bill  orders  to  deliver  the  bill  to  the  party 
ordering  the  goods,  or  to  receive  tlie  goods  and  deliver  them  to  him, 
provided  payment  be  made  or  secured,  or  such  other  terms  as  the 
consignor  prescribes  are  complied  with.  This  course  secures  to  the 
consignor,  bej'ond  all  question,  the  riglit  and  power  of  retaining 
the  goods  until  the  price  for  them  is  paid  or  secured  to  him."  This 
is  not  only  in  point,  but  seems  to  be  sound  in  principle.  The  fact 
that  Evans  j)resented  the  bill  of  lading  in  this  case  was  not  sufficient 
to  overcome  the  presumption  which  the  terms  of  the  bill  raised,  that 
the  consignor  was  the  owner  of  the  goods.  That  such  is  the  pre- 
sumption is  well  established.  Cougar  r.  Galena,  U.  Ry.  Co.,  17 
"Wis.  485;  Krulder  r.  Ellison,  47  N.  Y.  ^57;  Lawrence  v.  ^linturn, 
17  How.  100;  Alderman  v.  Eastern  Ry.  Co.,  115  :\Iass.  234.  See, 
also,  Tuttle  v.  Becker,  47  Iowa,  486;  1  Benj.  Sales,  sees.  577,  579; 
2  Amer.  &  Eng.  Cyclop.  Law,  242,  243.  The  contract  with  the 
canning  company  required  the  defendant  to  deliver  the  goods  to  the 
consignor.  The  unindorsed  bill  of  lading  presented  by  Evans  was 
evidence  that  the  contract  was  still  in  force,  and  that  the  canning 
company  was  then  the  owner  of  the  goods.  The  delivery  to  Evans 
was  not  authorized,  and  was  made  by  defendant  at  its  own  risk. 
Hutcli.  Carr.  sees.  129,  130,  344.  But  it  is  said  that  the  canning 
company  clothed  Evans  with  the  apparent  right  to  demand  the 
goods,  and  that,  since  "one  of  two  innocent  j)arties  must  suffer  a 
loss  from  the  wrong  of  another,  the  loss  should  fall  upon  the  jiarty 
who  put  it  in  the  jjower  of  that  other  to  perpetrate  the  wrong." 
Tliis  case  does  not  fall  within  tliat  rule,  for,  as  we  have  seen,  the 
possession  of  the  bill  of  lading,  without  indorsement  or  other  evi- 
dence of  an  assignment,  did  not  vest  Evans  with  any  apparent  right 
to  the  property.  The  loss  resulted  from  the  negligence  of  defendant 
in  not  insisting  upon  proper  evidence  of  an  assignment  bLiforc  it 
surrendered  tlie  goods. 

in.  It  is  insisted  by  appellant  tliat  tlie  delivery  to  Evans  was 
nirule  in  accordance  with  the  custom  at  I'ueljlo,  and  that  the  contract 
of  sliipment  must  have  been  made  with  reference  to  that  custom. 
The  Superior  Court  found  tliat  ])y  a  local  custom  at  Pueblo  goods 
8hip])ed  over  railway  lines  to  that  ])lace  were  delivered  to  the  jter- 
8on  who  held  the  bills  of  lading,  but  that  the  custom  was  not  general, 
and  plaintiff  liad  no  knowledge  of  it.  The  contract  of  shipment 
required  defendant  to  deliver  the  goods  to  tlie  canning  company, 
and  wo  question  the  right  of  defendant  to  vary  this  by  showing  a 


DELIVERY  BY  CARRIER.  335 

custom  in  conflict  with  it.  The  contract  was  not  ambiguous,  and 
required  no  explanation.  But  where  a  custom  may  be  shown  it 
must  appear  that  it  was  so  general  that  the  parties  to  the  contract 
will  be  presumed  to  have  contracted  with  reference  to  it.  Couch  v. 
Watson  Coal  Co.,  46  Iowa,  20;  Berkshire  Woolen  Co.  v.  Procter, 
7  Cush.  422;  Fay  y.  Insurance  Co.,  16  Gray,  461;  Wilson  v.  Bauman, 
80  111.  494;  2  Greenl.  Ev.  sec.  251.  The  court  below  not  only  found 
that  the  custom  pleaded  was  local,  but  that  plaintiff  had  no  know- 
ledge of  it.  How  the  knowledge  of  plaintiff  would  affect  the  con- 
tract does  not  appear,  but  knowledge  on  the  part  of  the  canning 
company  when  the  shipping  receipt  was  taken  is  not  pleaded  nor 
is  it  shown.  Therefore  this  defence  is  not  maintained.  Walls  v. 
Bailey,  49  N.  Y.  473;  Higgins  v.  Moore,  34  N.  Y.  425;  North  Peun. 
Ey.  Co.  V.  Commercial  Bank,  123  U.  S.  727;  8  Sup.  Ct.  Kep.  266; 
Clarke's  Browne,  Usages  &  Gust.  134,  note  4.  The  further  exami- 
nation which  we  have  given  this  case  on  rehearing  leads  us  to  con- 
clude that  the  first  decision  of  this  court  was  erroneous.  The 
judgment  of  the  Superior  Court  is 

Affirmed. 


SHAW  V.   RAILROAD   CO. 


101  U.  S.  557.     1879. 


Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Pennsylvania. 

This  is  an  action  of  replevin  brought  by  the  Merchants'  National 
Bank  of  St.  Louis,  Missouri,  against  Shaw  &  Esrey,  of  Philadel- 
phia;_Pennsylvania,  to  recover  possession  of  certain  cotton,  marked 
"WD  I."  One  hundred  and  forty-one  bales  thereof  having  been 
taken  possession  of  by  the  marshal  were  returned  to  the  defendants 
upon  their  entering  into  the  proper  bond.  On  Nov.  11,  1874,  Norvell 
&  Co.,  of  St.  Louis,  sold  to  the  bank  their  draft  for  !$11, 947.43  on 
M.  Kuhn  &  Brother,  of  Philadelphia,  and,  as  collateral  security  for 
the  payment  thereof  indorsed  in  blank  and  delivered  to.  the  bank  an 
original  bill  of  lading  for  one  hundred  and  seventy  bales  of  cotton 
that  day  shipped  to  the  last-named  city.  Tlae  duplicate  bill  of 
lading  was  on  the  same  day  forwarded  to  Kuhn  &  Brother  by 
Norvell  &  Co.  The  Merchants'  Bank  forwarded  the  draft,  with  the 
bill  of  lading  thereto  attached,  to  the  Bank  of  North  America.  On 
November  14,  the  last-named  bank  sent  the  draft  —  the  original  bill 
of  lading  still  being  attached  thereto  —  to  Kuhn  &,  Brother  by  its 
messenger  for  acceptance.  The  messenger  presented  the  draft  and 
bill  to  one  of  the  members  of  that  firm,  who  accepted  the  former. 


336  CAKRIEKS   OF   GOODS. 

but,  without  being  detected,  substituted  the  duplicate  for  the 
original  bill  of  lading. 

On  the  day  upon  which  this  transaction  occurred,  Kuhn  &  Brother 
indorsed  the  original  bill  of  lading  to  Miller  »S:  Brother, antl  received 
"thereon  an  advance  of  §8,500.  \Vithiu  a  few  days  afterwards,  the 
cotton,  or  rather  that  portion  of  it  which  is  in  controversy,  was, 
through  the  agency  of  a  broker,  sold  by  sample  with  the  approval 
of  Kuhn  &  Brother  to  the  defendants,  who  were  manufacturers  at 
Chester,  Pennsylvania.  The  bill  of  lading,  having  been  deposited 
on  the  same  day  with  the  North  Pennsylvania  Railroad  Company, 
at  whose  depot  tlie  cotton  was  expected  to  arrive,  it  was  on  its 
arrival  delivered  to  the  defendants. 

Tlie  fact  that  the  Bank  of  North  America  held  the  duplicate 
instead  of  the  original  bill  of  lading  was  discovered  for  the  first 
time  on  the  9th  of  December,  by  the  president  of  the  plaintiif,  who 
had  gone  to  Philadelphia  in  consequence  of  the  failure  of  Kulin  & 
Brother  and  the  protest  of  the  draft. 

The  defendants  below  contended  that  the  bill  of  lading  was  nego- 
tiable in  the  ordinary  sense  of  that  word;  that  Miller  &  Brother  had 
purchased  it  for  value  in  the  usual  course  of  business,  and  that  they 
thereby  had  acquired  a  valid  title  to  the  cotton,  which  was  not 
impaired  by  proof  that  Kuhn  &  Brother  had  fraudulently  got  posses- 
sion of  the  bill ;  but  the  court  left  it  to  the  jury  to  determine,  — 

1st,  Whether  there  was  any  negligence  of  the  plaintiff  or  its 
agents  in  parting  with  possession  of  tlie  bill  of  lading. 

2d,  Whether  Miller  &  Brother  knew  any  fact  or  facts  from  which 
they  had  reason  to  believe  that  the  bill  of  lading  was  held  to  secure 
payment  of  an  outstanding  draft. 

The  jury  having  found  the  first  question  in  the  negative  and  the 
second  in  the  affirmative,  further  found  "the  value  of  the  goods 
eloigned  "to  be  37,015.07,  assessed  the  plaintiff's  damages  at  tliat 
sum  with  costs,  for  which  amount  the  court  entered  a  judgment. 
Shaw  &  Esrey  thereupon  sued  out  this  writ  of  error. 

Mr.  Justice  Stuono.  The  defendants  ludow,  now  plaintiffs  in 
error,  bought  the  cotton  from  ^filler  &  Brotlier  by  sample,  tlirough 
a  cotton  broker.  No  bill  of  lading  or  other  written  evidence  of  title 
in  their  vendors  was  exhibited  to  them.  Hence,  they  can  have  no 
other  or  better  title  than  their  vendors  had. 

The  inquiry,  therefore,  is,  what  title  had  Miller  &  lirotlier  as 
again.st  the  Ijank,  which  confessedly  was  the  owner,  and  which  is 
still  the  owner,  unless  it  has  lost  its  ownership  by  the;  fraudulent 
act  of  Kuhn  &  Brother.  The  cotton  was  represented  by  tlie  bill  of 
lading  given  to  Norvell  &  Co.,  at  St.  Louis,  and  by  tiiom  indorsed 
to  tlie  Ijank,  to  secure  the  jiaynumt  of  an  accoinjianying  discounted 
time-draft.  That  indorsement  vested  in  the  bank  the  title  to  tlie. 
cotton,  iis  well  as  to  the  contract.  While  it  there  eontiiiued,  and 
during  the  transit  of  the  cotton  from  St.  Louis  to  I'hiladelpliia,  tUv 


DELIVERY   BY   CARRIER.  337 

indorsed  bill  of  lading  was  stolen  by  one  of  the  firm  of  Kuhn  & 
Brother,  and  by  them  indorsed  over  to  Miller  &  Brother,  for  an 
advance  of  $8,500.  The  jury  has  found,  however,  that  there  was  no 
negligence  of  the  bank,  or  its  agents,  in  parting  with  possession  of 
the  bill  of  lading,  and  that  Miller  &  Brother  knew  facts  from  which 
they  had  reason  to  believe  it  was  held  to  secure  the  payment  of  an 
outstanding  draft;  in  other  words,  that  Kuhn  &  Brother  were  not 
the  lawful  owners  of  it,  and  had  no  right  to  dispose  of  it. 

It  is  therefore  to  be  determined  whether  Miller  &  Brother,  by 
taking  the  bill  of  lading  from  Kuhn  &  Brother  under  these  circum- 
stances, acquired  thereby  a  good  title  to  the  cotton  as  against  the 
bank. 

In  considering  this  question,  it  does  not  appear  to  us  necessary  to 
inquire  whether  the  effect  of  the  bill  of  lading  in  the  hands  of  Miller 
&  Brother  is  to  be  determined  by  the  law  of  Missouri,  [where  the  bill 
was  given,  or  by  the  law  of  Pennsylvania,  where  the  cotton  was 
delivered.  The  statute  of  both  States  enact  that  bills  of  lading  shall 
be  negotiable  by  indorsement  and  delivery.  The  statute  of  Pennsyl- 
vania declares  simply,  they  "shall  be  negotiable  and  may  be  trans- 
ferred by  indorsement  and  delivery;  "  while  that  of  Missouri  enacts 
that  "they  shall  be  negotiable  by  written  indorsement  thereon  and 
delivery,  in  the  same  manner  as  bills  of  exchange  and  promissory 
notes."  There  is  no  material  difference  between  these  provisions. 
Both  statutes  prescribe  the  manner  of  negotiation;  i.e.,  by  indorse- 
ment and  delivery.  Neither  undertakes  to  define  the  effect  of  such 
a  transfer. 

We  must,  therefore,  look  outside  of  the  statute  to  learn  what  they 
mean  by  declaring  such  instruments  negotiable.  What  is  negotia- 
bility? It  is  a  technical  term  derived  from,  the  usage  of  merchants 
and  bankers,  in  transferring,  primarily,  bills  of  exchange  and,  after- 
wards, promissory  notes.  At  common  law  no  contract  was  assign- 
able, so  as  to  give  to  an  assignee  a  right  to  enforce  it  by  suit  in  his 
own  name.  To  this  rule  bills  of  exchange  and  promissory  notes, 
payable  to  order  or  bearer,  have  been  admitted  exceptions,  made 
such  by  the  adoption  of  the  law  merchant.  They  may  be  trans- 
ferred by  indorsement  and  delivery,  and  such  a  transfer  is  called 
negotiation.  It  is  a  mercantile  business  transaction,  and  the  capa- 
bility of  being  thus  transferred,  so  as  to  give  to  the  indorsee  a  right 
to  sue  on  the  contract  in  his  own  name,  is  what  constitutes  negotia- 
bility. The  term  "  negotiable  "  expresses,  at  least  primarily,  this 
mode  and  effect  of  a  transfer. 

In  regard  to  bills  and  notes,  certain  other  consequences  generally, 
though  not  always,  follow.  Such  as  a  liability  of  the  indorser,  if 
demand  be  duly  made  of  the  acceptor  or  maker,  and  seasonable 
notice  of  his  default  be  given.  So  if  the  indorsement  be  made  for 
value  to  a  bona  fide  holder,  before  the  maturity  of  the  bill  or  note, 
in  due  course  of  business,  the  maker  or  acceptor  cannot  set  up 


338  CARRIERS   OF   GOODS. 

a<nimst  the  indorsee  any  defence  which  might  have  been  set  up 
against  the  payee,  had  the  bill  or  note  remained  in  his  hands. 

So,  also,  if  a  note  or  bill  of  exchange  be  indorsed  in  blank,  if 
payable  to  order,  or  if  it  be  payable  to  bearer,  and  therefore  nego- 
tiable by  delivery  alone,  and  then  be  lost^or  stolen,  bona  jide  pur- 
chaser for  value  paid  acquires  title  to  it,  even  as  against  the  true 
owner.  This  is  an  exception  from  the  ordinary  rule  respecting 
personal  property.  But  none  of  these  consequences  are  necessary 
attendants  or  constituents  of  negotiability,  or  negotiation.  That 
may  exist  without  them.  A  bill  or  note  past  due  is  negotiable,  if 
it  be  payable  to  order,  or  bearer,  but  its  indorsement  or  delivery 
does  not  cut  off  the  defences  of  the  maker  or  acceptor  against  it, 
nor  create  such  a  contract  as  results  from  an  indorsement  before 
maturity,  and  it  does  not  give  to  the  purchaser  of  a  lost  or  stolen 
bill  the  rights  of  the  real  owner. 

It  does  not  necessarily  follow,  therefore,  that  because  a  statute 
has  made  bills  of  lading  negotiable  by  indorsement  and  delivery, 
all  these  consequences  of  an  indorsement  and  delivery  of  bills  and 
notes  before  maturity  ensue  or  are  intended  to  result  from  such 
negotiation. 

Bills  of  exchange  and  promissory  notes  are  exceptional  in  their 
character.  They  are  representatives  of  money,  circulating  in  the 
commercial  world  as  evidence  of  money,  "of  which  any  person  in 
lawful  possession  may  avail  himself  to  pay  debts  or  make  purchases 
or  make  remittances  of  money  from  one  country  to  another,  or  to 
remote  places  in  the  same  country.  Hence,  as  said  by  Story,  J., 
it  has  become  a  general  rule  of  the  commercial  world  to  hold  bills 
of  exchange,  as  in  some  sort,  sacred  instruments  in  favor  of  bona 
fide  holders  for  a  valuable  consideration  without  notice."  "Without 
s^^uch  a  holding  they  could  not  perform  their  peculiar  functions.  It 
is  for  this  reason  it  is  held  that  if  a  bill  or  note,  indorsed  in  blank, 
or  i)ayable  to  bearer,  be  lost  or  stolen,  and  be  jiurchased  from  the 
finder  or  thief,  without  any  knowledge  of  want  of  ownership  in  the 
vendor,  the  bona  fide  purchaser  may  hold  it  against  the  true  owner. 
He  may  hold  it  though  he  took  it  negligently,  and  when  there  were 
suspicious  circumstances  attending  the  transfer.  Nothing  short  of 
actual  or  constructive  notice  that  the  instrument  is  not  the  property 
of  the  person  who  offers  to  sell  it  —  that  is,  nothing  short  of  vmhi 
fides  —  will  defeat  his  right.  T'he  rule  js  the  same  as  that  which 
protects  the  bona  fide  indorser  of  a  bill  or  note  purchased  for  value 
from  the  true  owner.  The  jiurcliasor  is  not  bound  to  look  beyond 
the  instrument.  Goodman  r.  ITarvcy,  4  Ad.  \-  K.  S70;  doodman  v. 
Simonds,  20  How.  .'il.".;  Murray  r.  Ijardncr,  'J  Wall.  IK);  ."Nlattliews 
V.  Poythress,  4  Ga.  287.  The  rule  was  first  applied  to  the  case  of 
a  htst  ])ank-note  (Miller  v.  Kace,  1  liurr.  452),  and  put  upon  tlie 
ground  that  tlie  interests  of  trade,  the  usual  course  of  business,  and 
the  fact  that  bank-notes  pass  from  hand  to  hand  as  coin,  require  it. 


DELIVERY  BY  CARRIER.  339 

It  was  subsequently  held  applicable  to  mercliants'  drafts,  and  in 
Peacock  v.  Khodes,  2  Doug.  633,  to  bills  and  notes,  as  coming 
within  the  same  reason. 

The  reason  can  have  no  application  to  the  case  of  a  lost  or  stolen 
bill  of  lading.  The  function  of  that  instrument  is  entirely  different 
from  that  of  a  bill  or  note.  It  is  not  a  representative  of  money, 
used  for  transmission  of  money,  or  for  the  payment  of  debts  or  for 
purchases.  It  does  not  pass  from  hand  to  hand  as  bank-notes  or 
coin.  It  is  a  contract  for  the  performance  of  a  certain  duty.  True, 
it  is  a  symbol  of  ownership  of  the  goods  covered  by  it,  —  a  represen- 
tative of  those  goods.  But  if  the  goods  themselves  be  lost  or  stolen, 
no  sale  of  them  by  the  tinder  or  thief,  though  to  a  bona  fide  pur- 
chaser for  value,  will  divest  the  ownership  of  the  person  who  lost 
them,  or  from  whom  they  were  stolen.  AVhy  then  should  the  sale 
of  the  symbol  or  mere  representative  of  the  goods  have  such  an 
effect?  It  may  be  that  the  true  owner,  by  his  negligence  or  care- 
lessness, may  have  put  it  in  the  power  of  a  finder  or  thief  to  occupy 
ostensibly  the  position  of  a  true  owner,  and  his  carelessness  may 
estop  him  from  asserting  his  right  against  a  purchaser  who  has  been 
misled  to  his  hurt  by  that  carelessness.  But  the  present  is  no  such 
case.  It  is  established  by  the  verdict  of  the  jury  that  the  bank 
did  not  lose  its  possession  of  the  bill  of  lading  negligently.  There 
is  no  estoppel,  therefore,  against  the  bank's  right. 

Bills  of  lading  are  regarded  as  so  much  cotton,  grain,  iron,  or 
other  articles  of  merchandise.  The  merchandise  is  very  often  sold 
or  pledged  by  the  transfer  of  the  bills  which  cover  it.  They  are,  in 
commerce,  a  very  different  thing  from  bills  of  exchange  and  promis- 
sory notes,  answering  a  different  purpose  and  performing  different 
functions.  It  cannot  be,  therefore,  that  the  statute  which  made 
them  negotiable  by  indorsement  and  delivery,  or  negotiable  in  the 
same  manner  as  bills  of  exchange  and  promissory  notes  are  nego- 
tiable, intended  to  change  totally  their  character,  and  put  them  in 
all  respects  on  the  footing  of  instruments  which  are  the  representa- 
tives of  money,  and  charge  the  negotiation  of  them  with  all  the 
consequences  which  usually  attend  or  follow  the  negotiation  of  bills 
and  notes.  Some  of  these  consequences  would  be  very  strange  if 
not  impossible,  —  such  as  the  liability  of  indorsers,  the  duty  of 
demand  ad  diem,  notice  of  non-delivery  by  the  carrier,  etc.,  or  the 
loss  of  the  owner's  property  by  fraudulent  assignment  of  a  thief. 
If  these  were  intended,  surely  the  statute  would  have  said  some- 
thing more  than  merely  make  them  negotiable  by  indorsement.  No 
statute  is  to  be  construed  as  altering  the  common  law  farther  than 
its  words  import.  It  is  not  to  be  construed  as  making  any  inno- 
vation upon  the  common  law  which  it  does  not  fairly  express. 
Especially  is  so  great  an  innovation  as  would  be  placing  bills  of 
lading  on  the  same  footing  in  all  respects  with  bills  of  exchange 
not  to  be  inferred  from  words  that  can  be  fully  satisfied  without  it. 


340  CAKIIIEES   OF   GOODS. 

The  law  has  most  carefully  protected  the  ownership  of  personal 
property,  other  than  money,  against  misappropriation  by  others 
than  the  owner,  even  when  it  is  out  of  his  possession.  This 
protection  would  be  largely  withdrawn  if  the  misappropriation  of 
its  symbol  or  representative  could  avail  to  defeat  the  ownership, 
even  when  the  person  who  claims  under  a  misai)propriation  had 
reason  to  believe  that  the  person  from  whom  he  took  the  property 
had  no  right  to  it. 

"We  think,  therefore,  that  the  rule  asserted  in  Goodman  r.  Harvey, 
Goodman  v.  Simonds,  Murray  c,  Larduer,  suju-d,  and  in  Phelan  r. 
Moss,  67  Pa.  St.  59,  is  not  applicable  to  a  stolen  bill  of  lading.  At 
least  the  purchaser  of  such  a  bill,  with  reason  to  believe  that  his 
vendor  was  not  the  owner  of  the  bill,  or  that  it  was  held  to  secure 
the  payment  of  an  outstanding  draft,  is  not  ^  bona  fide  purchaser, 
and  he  is  not  entitled  to  hold  the  merchandise  covered  by  the  bill 
against  its  true  owner.  In  the  present  case  there  was  more  than 
mere  negligence  on  the  part  of  Miller  &  Brother,  more  than  mere 
reason  for  suspicion.  There  was  reason  to  believe  Kuhn  &  Brother 
had  no  right  to  negotiate  the  bill.  This  falls  very  little,  if  any, 
short  of  knowledge.  It  may  fairly  be  assumed  that  one  who  has 
reason  to  believe  a  fact  exists,  knows  it  exists.  Certainly,  it  he 
be  a  reasonable  being. 

Judgment  affirmed. 


d.    Deliver}/  to  Tnie  Oxcner. 

THE   IDAIKJ. 

93  U.  S.  575.     1870. 

Mr.  Ju.stice  Strong.  In  determining  the  merits  of  the  defence 
set  up  in  this  case,  it  is  necessary  to  inquire  wlu'tiier  tlie  law  per- 
mits a  common  carrier  to  show,  as  an  excuse  for  non-delivery  i)ur- 
suant  to  his  bill  of  lading,  that  he  has  delivered  the  goods  upon 
demand  to  the  true  owner.  Upon  this  subject  there  has  been  much 
debate  in  courts  of  law,  and  some  contrariety  of  decision. 

In  Kolle's  Abr.  COO,  tit.  "Detinue,"  it  is  said,  "If  the  bailee  of 
goods  deliver  them  to  liim  wlio  has  the  right  to  them,  he  is,  not- 
witljstanding,  chargeable!  to  the  bailor,  who,  in  truth,  has  no  right;  " 
and  for  this,  9  Henry  VI.  5H,  is  cited.  And  so,  if  the  bailee  deliver 
them  to  the  bailor  in  such  a  case,  he  is  said  not  to  ])e  chargeable  to 
the  true  owner,  id.  007,  for  which  7  Henry  VI.  22,  is  cited.  Tlie 
reaaons  given  for  such  a  doctrine,  however  satisfactory  they  may 
have  been  when  they  were  announced,  can  hardly  command  assent 
now.  It  is  now  everywlifre  held,  that,  wlien  the  true  owner  has  by 
legal  proceedings  compelled  a  delivery  to  himself  of  the  goods  bailed, 


DELIVERY   BY  CARRIER.  341 

such  delivery  is  a  complete  justification  for  non-delivery,  according 
to  the  directions  of  the  bailor.  Bliven  v.  Hudson  River  liailroad 
Co.,  36  N.  Y.  403  [364].  And  so,  when  the  bailee  has  actually 
delivered  the  property  to  the  true  owner,  having  a  right  to  the  pos- 
session, on  his  demand,  it  is  a  suflficient  defence  against  the  claim 
of  the  bailor.  The  decisions  are  numerous  to  this  effect.  King  v. 
Richards,  6  Whart.  418;  Bates  v.  Stanton,  1  Duer,  79;  Hardman  v. 
Wilcock,  9  Bing.  382;  Biddle  v.  Bond,  6  Best  &  S.  225.  If  it  be 
said,  that,  by  accepting  the  bailment,  the  bailee  has  estopped  him- 
self against  questioning  the  right  of  his  bailor,  it  may  be  remarked 
in  answer,  that  this  is  assuming  what  cannot  be  conceded.  Un- 
doubtedly the  contract  raises  a  strong  presumption  that  the  bailor 
is  entitled;  but  it  is  not  true  that  thereby  the  bailee  conclusively 
admits  the  right  of  the  principal.  His  contract  is  to  do  with  the 
property  committed  to  him  what  his  principal  has  directed,  — to 
restore  it,  or  to  account  for  it.  Cheeseman  v.  Exall,  6  Exch.  341. 
And  he  does  account  for  it  when  he  has  yielded  it  to  the  claim  of 
one  who  has  right  paramount  to  that  of  his  bailor.  If  there  be 
any  estoppel,  it  ceases  when  the  bailment  on  which  it  is  founded  is 
determined  by  what  is  equivalent  to  an  eviction  by  title  paramount; 
that  is,  by  the  reclamation  of  possession  by  the  true  owner.  Biddle 
V.  Bond,  siqjra.  Nor  can  it  be  maintained,  as  has  been  argued  in 
the  present  case,  that  a  carrier  can  excuse  himself  for  failure  to 
deliver  to  the  order  of  the  shipper,  only  when  the  goods  have  been 
taken  from  his  possession  by  legal  proceedings,  or  where  the  shipper 
has  obtained  the  goods  by  fraud  from  the  true  owner.  It  is  true, 
that,  in  some  of  the  cases,  fraud  of  the  shipper  has  appeared;  and 
it  has  sometimes  been  thought  it  is  only  in  such  a  case,  or  in  a 
case  where  legal  proceedings  have  interfered,  that  the  bailee  can 
set  up  the  Jus  tei'tii.  There  is  no  substantial  reason  for  the  opinion. 
No  matter  whether  the  shipper  has  obtained  the  possession  he  gives 
to  the  carrier  by  fraud  practised  upon  the  true  owner,  or  whether 
he  mistakenly  supposes  he  has  rights  to  the  property,  his  relation  to 
his  bailee  is  the  same.  He  cannot  confer  rights  which  he  does  not 
himself  possess;  and  if  he  cannot  withhold  the  possession  from  the 
true  owner,  one  claiming  under  cannot.  The  modern  and  best-con- 
sidered cases  treat  as  a  matter  of  no  importance  the  question  how 
the  bailor  acquired  the  possession  he  has  delivered  to  his  bailee,  and 
adjudge,  that,  if  the  bailee  has  delivered  the  property  to  one  who 
had  the  right  to  it  as  the  true  oAvner,  he  may  defend  hmself  against 
any  claim  of  his  principal.  In  the  late  case  of  Biddle  v.  Bond, 
sujjra,  decided  in  1865,  it  was  so  decided;  and  Blackburn,  J.,  in 
delivering  the  opinion  of  the  court,  said  there  was  nothing  to  alter 
the  law  on  the  subject  in  the  circumstance  that  there  was  no  evi- 
dence to  show  the  plaintiff,  though  a  wrong-doer,  did  not  honestly 
believe  that  he  had  the  right.  Said  he,  the  position  of  the  bailee  is 
precisely  the  same,  whether  his  bailor  was  honestly  mistaken  as  to 


342  CARRIERS   OF   GOODS. 

the  rights  of  the  third  person  whose  title  is  set  up,  or  fraudulently 
acting  in  derogation  of  them.  In  Western  Transportation  Company 
r.  Barber,  56  X.  Y.  544,  the  Court  of  Appeals  of  New  York  unani- 
mously asserted  the  same  doctrine,  saying,  "  The  best-decided  cases 
hold  that  the  right  of  a  third  person  to  which  the  bailee  has  yielded 
may  be  interposed-  in  all  cases  as  a  defence  to  an  action  brought  by 
a  bailor  subsequently  for  the  property.  When  the  owner  comes  and 
demands  his  property,  he  is  entitled  to  its  immediate  delivery,  and 
it  is  the  duty  of  the  possessor  to  make  it.  The  law  will  not  adjudge 
the  performance  of  this  duty  tortious  as  against  a  bailor  having  no 
title."  The  court  repudiated  any  distinction  between  a  case  where 
the  bailor  was  honestly  mistaken  in  believing  he  had  the  right,  and 
one  where  a  bailor  obtained  the  possession  feloniously  or  by  force 
or  fraud;  and  we  think  no  such  distinction  can  be  made. 

We  do  nut  deny  the  rule  tliat  a  bailee  cannot  avail  himself  of  the 
title  of  a  third  person  (though  that  person  be  the  true  owner)  for 
the  purpose  of  keeping  the  property  for  himself,  nor  in  any  case 
where  he  has  not  yielded  to  the  paramount  title.  If  he  could,  he 
might  keep  for  himself  goods  deposited  with  him,  without  any  pre- 
tence of  ownership.  But  if  he  has  performed  his  legal  duty  by 
delivering  the  property  to  its  true  proprietor,  at  his  demand,  he  is 
not  answerable  to  the  bailor.  And  there  is  no  difference  in  this 
particular  between  a  common  carrier  and  other  bailees. 


e.    Ddiva'ij  to  U'roiiij  Fnrti/  throii'jli  Mlstahe  or  Fniud. 

roWELL   V.    MYEKS. 

20  Wend.  (N.  Y.  Ct.  of  Errors)  noi.     1811. 

Error  from  the  Supreme  Court,  flyers  brought  an  action  in  the 
common  pleas  of  New  York  against  Powell  and  others  as  common 
carriers,  for  the  loss  of  a  trunk  and  its  contents,  taken  on  board  a 
steamboat  owned  by  the  defendants,  at  West  I'oint,  by  a  son  of  the 
plaintiff,  who,  at  the  time,  was  a  minor,  and  took  passage  in  the 
boat  for  Now  York.  The  boat  usually  left  Newburg  at  five  o'clock 
I'.M.,  and  arrived  at  New  York  between  nine  and  ten  the  same  even- 
ing. Shortly  before  arriving  at  the  dock,  a  young  man  named 
Truyn,  who  accompanied  the  [daintiff's  son  from  West  I'oint,  in  liis 
presence  inrpiired  of  tlic  master  of  tlie  boat  whether  their  liaggage 
would  be  safe  on  board  the  l)oat  during  tlie  night;  who  answered 
that  it  would  bo  perfectly  safe,  for  they  stationed  a  watch  for  its 
protection  until  morning.  Passengers  occasionally  stayed  on  board 
during  the  night,  but  tisually  left  tlie  boat  on  arriving  at  the  city. 


DELIVERY   BY   CARRIER.  343 

Pruyn  stayed  on  board,  but  the  plaintiff's  son  left  the  boat  soon 
after  its  arrival,  and  on  the  next  morning,  at  about  eight  o'clock, 
went  to  the  boat  for  his  trunk,  and  then  learned  that  it  had  been 
delivered  on  a  forged  order.  A  negro  man  had  come  on  board  and 
presented  an  order  for  the  trunk.  The  master  of  the  boat  pointed  it 
out  to  the  negro.  Pruyn,  who  was  present,  observed  that  the  trunk 
had  been  left  in  his  charge.  The  master  of  the  boat  said  there  was 
an  order  for  it,  when  Pruyn  said  very  well,  and  told  the  negro  to 
take  it.  The  judge  charged  the  jury  that  the  defendants  were 
responsible  for  the  delivery  of  the  baggage  of  travellers  in  their 
boat,  unless  lost  by  inevitable  accident;  that  if  the  trunk  had  not 
been  delivered  to  the  passenger,  and  was  not  so  lost,  the  defendants 
remained  liable  even  after  the  boat  arrived  at  the  wharf.  To  which 
charge  the  counsel  for  the  defendants  excepted.  The  jury  found  a 
verdict  for  the  plaintiff,  on  which  judgment  was  rendered:  which 
judgment  was  affirmed  by  the  Supreme  Court  on  writ  of  error,  on  the 
ground  that  this  case  was  not  distinguishable  from  those  of  Hollister 
V.  Nowlen,  19  Wendell,  234,  and  Cole  v.  Goodwin,  id.  251.  The 
defendants  removed  the  record  into  this  court  by  writ  of  error, 
where  the  case  was  submitted  on  printed  arguments  by :  — 

By  the  Chancellor.  ....... 

It  appears  from  the  testimony,  that  the  boat  usually  arrived  at 
New  York  in  the  night,  and  though  the  passengers  usually  landed 
with  their  baggage  before  morning,  they  frequently  remained  on 
board  through  the  night.  The  jury  therefore  were  right  in  conclud- 
ing that  the  baggage  left  on  board  was  in  the  custody  of  the  master 
in  his  capacity  of  common  carrier  until  it  was  called  for  at  the  usual 
time  in  the  morning,  after  his  arrival  at  his  place  of  destination. 
The  owners  of  the  boat,  in  whose  custody  the  trunk  was,  were  there- 
fore clearly  liable  for  the  misdelivery  thereof  to  the  colored  man, 
upon  the  forged  order,  and  were  rightfully  charged  with  the  loss. 
Even  in  the  ordinary  case  of  a  bank  which  pays  out  the  money  of  a 
depositor  upon  a  forged  check,  in  his  name,  the  institution  and  not 
the  depositor  must  sustain  the  loss.  So,  too,  the  warehouseman, 
who  is  not  liable  to  the  same  extent  as  the  common  carrier,  has 
been  held  liable  for  delivering  the  goods  intrusted  to  his  care  to 
the  wrong  person,  where  such  delivery  was  by  mistake  merely  and 
not  intentionally  wrong.  See  Devereux  v.  Barclay,  2  Barn.  &  Aid 
Rep.  702. 

For  these  reasons  I  think  the  decisions  of  the  judge  who  tried  the 
cause  and  of  the  Supreme  Court  were  correct,  and  that  the  judgment 
should  be  affirmed. 


344  CARRIERS   OF   GOODS. 

AMERICAN   EXPRESS   CO.    v.   STACK. 

29  lud.  27.     1^07. 

Gregory,  J.  Stack  sued  the  appellant  for  the  non-delivery  of 
two  bonds.  The  defendant  answered  by  the  general  denial,  with  an 
agreement  between  the  parties  that  all  legal  defence  could  be  given 
in  evidence  under  it.  Trial  by  the  court;  tinding  for  the  plaintitf ; 
motion  for  a  new  trial  overruled,  and  judgment. 

The  evidence  which  is  made  part  of  the  record  tends  to  show  that 
the  plaintiff  enlisted  as  a  soldier  in  the  army  of  the  United  States, 
in  Lockport,  Niagara  County,  New  York,  in  September,   18G4,  and 
received,  as  a  bounty  from  that  county,  two  hundred  dollars  in  cash 
and  the  bonds  described  in  the  complaint,  which  bonds  were  imme- 
diately  sent  by  express  to  the   plaintiff's   wife,   Hannah   Stack,  at 
Chicago,  Illinois.     In  July,  ISG.^J,  the  plaintiff  was  mustered  out  of 
the  service  near  Albany,  New  York,  and  arrived  home  in  Chicago 
on  the  16th  of  that  month.     A  few  days  before  the  plaintiff  got 
home  his  wife  api)eared  at  the  provost  marshal's  ofKce  in  Chicago, 
and  after  a  conference  with  Captain  James,  the  provost  marshal, 
she  was  referred  by  him   to  the  witness,  Evelcth,  then  a  clerk  in 
the  office,  with  a  request  that  he  attend  to  her  business.     She  then 
exhibited  to  Eveleth  a  paper  purporting  to  be  a  telegram  from  her 
liusband,  James  Stack,  from  number  G4  :Montgomery  Street,  Albany, 
New  York,    directing   her   to   send   those    bonds   to  Albany,    New 
York,  64  Montgomery  Street.     She  handed  Eveleth  two  bonds,  an- 
swering  the   descrii)tion   of    those    in   the   complaint   referred   to, 
who  thereupon  enclosed  them  properly  and  directed  the  package 
"To  James  Stack,  64  Montgomery  Street,  Albany,  N.  Y."     He  also 
indorsed  on  the  back  of  the  package  the  amount  of  the  enclosed,  and 
the  words  "From  Mrs.  Hannah  Stack,  Chicago,   Illinois."     Hr,  at 
the  same  time,  wrote  a  letter,  in  the  name  of  Hannah  Stack,  to  be 
sent  by  mail,  informing  James  Stack  of  the  transmission  of  the  bonds 
by  express,  and  addressed  the  letter   to  "James  Stack,  64    M(.nt- 
gomery  Street,  Albany,   New   York."     i)n  the   lltli  of  July,  .Jdui 
Staving,  then  receiving  clerk  of  the  United  States  Express  Company 
at  Chicago,  received  the  package  and  gave  a  receipt  therefor,  in 
which    that  company    undertook   to    forward    the    package   to   the 
nearest  jKtint  reached  by  it,  and  that  the  company  should  only  be 
liable  as  forwarders.      Tlu;  United  States  Express  Conqtany  carried 
the  package  to  Buffalo,  New  York  (the  end  of  the  line),  and  there 
delivered  it  to  the  api)ellant.     The  i)aekage  reached  Albany,  New 
York,  on  the  lith  of  July,   lS6o,  and  was  there  delivered,  by  the 
duly  autliori/.ed  agent  of  the  defendant,  on  the  l."th  (the  next  d.iy) 


DELIVERY   BY  CARRIER.  345 

to  a  man  representing  himself  to  be  James  Stack,  under  these  cir- 
cumstances :  On  the  day  of  its  arrival,  the  delivery  agent  of  the  com- 
pany called  with  it  at  64  INIontgomery  Street,  which  was  a  hotel,  or 
boarding-house,   kept  by  Lillis,  and   there  found,  on  inquiry,  that 
Stack  was  not  then  in,  whereupon  the  package  was  returned  to  the 
defendant's  office.  On  the  morning  of  the  15th  of  July,  a  man  called 
at  the  office,  representing  himself  to  be  James  Stack,  and  showed 
the   agent   a   letter  purporting  to  come  from  Hannah  Stack,  from 
Chicago,  informing  him  (Stack)  that  the  bonds  had  been  sent  by 
exj^ress.     He  was  informed  by  the  agent  that  he  must  get  some  one 
to  identify  him  —  that  the  letter  was  not  enough.     The  man  left  the 
office,  and  shortly  after  returned  with  Lillis.     The  agent  was  unac- 
quainted with  the  latter,  and  required  some  one  known  to  him  (the 
agent)  to  be  brought  to  vouch  for  Lillis.     Slevin  was  then  brought 
in,  who  was  known  to  the  agent  to  be  a  reliable  man.     Slevin  did 
not  know  Stack,  and  so  informed  the  agent,  but  did  know  Lillis,  and 
represented  him  to  the  agent  as  all  right  and  reliable.     The  agent 
then  asked  Lillis  if  the  man  with  him  was  James  Stack,  and  Lillis 
replied  that  he  was,  and  was  staying  at  his  (Lillis')  house.     Lillis 
was  asked  no  other  questions  and  gave  no  other  information.     The 
man  calling  himself  Stack  was  asked  by  the  agent,  in  the  presence 
of  Lillis,  what  the  package  contained,  and  the  man  replied  that  it 
contained  a  bond  for  ^500,  and  one  for  $300,  Niagara  County  war 
bonds,  and  was  from  his  wife,  Hannah  Stack,  from  Chicago.     The 
agent  thereupon  delivered  the  package  to  the  supposed  Stack.     The 
person  to  whom  the  package  was  delivered  was  not  the  real  James 
Stack,  but  a  swindling  pretender,  who  had  doubtless  sent  the  false 
despatch  to  Stack's  wife.     The  appellee  did  not  send  the  despatch 
which  his  wife  got,  nor  had  he  any  knowledge  of  its  being  sent. 
Lillis  had  no  other  knowledge  or  information  about  the  pretender 
than  this :  About  a  week  or  ten  days  before  the  package  was  delivered, 
a  man  came  to  his  house  and  said  his  name  was  James  Stack,  and 
that  he  was  a  soldier,  stopping  at  the  barracks,  then  located  between 
Troy  and  Albany,  and  asked  permission  of  Lillis  for  a  room  to  write 
a  letter  to  his  wife,  which  was  given.     After  the  letter  was  written, 
he   asked   Lillis   for  his  address,  which  was  given  thus:  "James 
Lillis,  64  Montgomery  Street,  Albany,  New  York."     Stack  said  he 
would  have  a  letter  addressed  to  him  at  Lillis'  house,  and  requested 
that  if  it  came  it  should  be  kept.     After  that  he  called  occasionally 
at  Lillis'  house  and  took  meals,  up  to  the  time  the  package  came; 
and,  in  the  mean  time,  a  letter  came  to  Lillis'  house  for  him,  and  he 
stated  to  Lillis  that  the  letter  came  from  his  wife,  and  informed 
him  of  the  sending  of  a  package  by  express.     The  agent  of  the 
express  company,   at  the  time  he  delivered  the  package,   Avas   not 
aware  of  the  nature  or  extent  of  Lillis'  knowledge  and  acquaintance 
with  the  pretender,  nor  did  he  ask  any  question  or  make  any  effort 
to  acquire  such  information. 


346  CARRIERS   OF   GOODS. 

It  is  claimed,  that,  admitting  the  liability  assumed  by  the  appel- 
lant to  be  that  of  a  common  carrier,  yet  that  such  liability  ter- 
minated  when  the  package  was  taken  to  64  Montgomery  Street,  and 
thereafter  the  appellant  was  only  bound  to  ordinary  diligence  in 
keeping  the  package  for  the  owner.  It  is  also  urged  that  the  con- 
tract entered  into  between  the  plaintiff  and  the  United  States 
Express  Company  is  to  govern  in  fixing  the  liability  of  the  appellant. 

It  is  not  necessary,  for  the  determination  of  this  case,  that  we 
should  pass  upon  either  of  these  propositions.  For  in  any  event  the 
liability  of  the  company  could  not  be  less  than  that  of  a  warehouse- 
man. 

In  Devereux  et  al.  v.  Barclay  et  al.,  2  Bar.  &  Aid.  702,  it  was 
held  that  trover  will  lie  for  the  misdelivery  of  goods  by  a  ware- 
houseman, although  such  misdelivery  has  occurred  by  mistake  only. 
Nor  will  a  delivery  on  a  forged  order  protect  the  warehouseman. 
Lubbock  V.  Inglis,  1  Starkie,  104  (2  En.  Com.  L.  215). 

The  court  below  found,  under  the  facts,  tliat  there  was  a  want  of 
ordinary  diligence  on  the  part  of  the  company  in  the  delivery  of  the 
package.  "We  think  the  evidence  justifies  tliis  conclusion.  But  we 
are  not  inclined  to  apply  this  rule  to  the  delivery  of  goods  intrusted 
to  warehousemen  and  others  in  like  condition.  There  must  be  a 
delivery  to  the  right  person.  It  is  always  in  the  power  of  the 
person  having  the  goods  in  charge  to  identify  the  owner.  If  lie 
suffer  himself  to  be  imposed  on,   it  is  his  own  fault. 

The  judgment  is  affirmed,  with  costs,  and  three  per  cent  damages. 


PRICE   V.    OSWEGO   &   SYRACUSE   R.    CO. 
50  N.  Y.  213.     1»72. 

Ai'i'KAL  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  tlie  fourth  judicial  departnient,  affirming  a  judgment  in  favor  of 
defendant,  entered  upon  the  report  of  a  referee.  Reported  below, 
58  Barb.  599. 

The  action  was  brought  against  defendant  as  common  carrier  to 
recover  tlie  value  of  three  bales  of  bags  shiiiped  by  plaintiff  at 
Syracuse,  consigned  to  S.  H.  Wilson  &  Co.,  Oswego.  The  facts  are 
stated  sufficiently  in  tlie  opinion. 

Grovkk,  J.  The  referee  found  as  a  conclusion  of  law,  iidin  the 
facts  found,  that  the  defendant,  having  delivered  the  bags  to  the 
person  who  made  tlio  order  for  tliem  (altliongli  in  tlie  name  of  a 
fictitious  firm)  without  notice  of  the  fraud,  was  not  liable  to  tlie 
plaintiff  tlierefor.  To  this  conclusion  the  api)cllant  excepted.  The 
counsel  for  the  respondent  insists  that  if  the  legal  conclusion  is  not 
sustained  by  the  facts  found,  the  court  will  assume  that  he  found 


DELIVERY    BY    CARRIER.  347 

6uch  additional  facts  as  were  necessary  for  that  purpose.  This  posi- 
tion is  correct,  subject,  however,  to  the  qualification  that  it  must 
appear  from  the  case  that  such  additional  findings  would  have  been 
warranted  by  the  evidence.  Oberlander  v.  Spiess,  45  N.  Y.  175. 
In  the  present  case  there  was  no  evidence  warranting  the  finding  of 
any  additional  facts  sustaining  the  legal  conclusion.  The  ques- 
tion, therefore,  is  whether  such  conclusion  is  sustained  by  the  facts 
found.  The  facts  (so  far  as  material)  found  were :  That  the  plain- 
tiff, on  and  prior  to  September,  1866,  was  a  dry-goods  merchant, 
doing  business  in  Syracuse.  That  the  defendant  was  a  common 
carrier  of  goods  between  Syracuse  and  Oswego.  That  a  few  days 
prior  to  the  10th  of  September,  1866,  Caleb  B.  Morgan,  a  resident 
of  Syracuse,  received  a  letter  by  mail,  dated  and  mailed  at  Oswego, 
directed  to  him  at  Syracuse,  signed  S.  H.  Wilson  &  Co.,  inquiring 
the  price  of  bags.  That  Morgan  had  been  a  dealer  in  bags,  but  had 
given  up  the  business,  and  upon  receipt  of  the  letter  he  delivered 
the  same  to  the  plaintiff,  who  kept  bags  for  sale,  and  requested  the 
plaintiff  to  inform  him  of  the  price  of  the  said  bags.  That  Morgan 
did  not  know  any  person  or  firm  by  the  name  of  S.  H.  Wilson  & 
Co.,  nor  had  he  heard  of  any  such  person  or  firm,  but  delivered  tlie 
letter  to  the  plaintiff,  believing  it  had  been  written  in  good  faith  in 
the  ordinary  course  of  business  by  a  firm  wishing  to  purchase  bags. 
That  the  plaintiff  upon  receipt  of  the  letter  gave  to  Morgan  the 
prices  of  bags,  who  communicated  them  in  a  letter,  addressed  and 
mailed  by  him  to  S.  H.  Wilson  &  Co.,  Oswego.  That  afterward, 
and  on  the  10th  or  11th  of  September,  the  plaintiff  received  through 
the  post-office  at  Syracuse  aletter,  mailed  at  Oswego,  as  follows :  — 

"  Oswego,  Sept.  10,  1866. 
"Mr.  Milton  Price,  — Sir:  We  are  in  want  of  some  bags,  and  wrote 
Mr.  Morgan,  supposing  he  was  in  the  trade,  and  he  has  quoted  your  prices 
for  stock,  etc.  Please  send  us  by  rail  100  of  each,  and  hope  you  can  make 
the  price  a  little  less,  and  will  be  able  to  give  you  a  larger  order  soon.  Please 
send  bill  by  mail,  and  we  will  remit  check  for  amount  of  same. 

"(Signed)  S.  H.  Wilson  &  Co." 

That  on  the  13th  September,  1866,  the  pLaintiff,  with  a  view  of 
complying  with  the  order,  delivered  to  the  defendant  at  Syracuse 
three  bales  of  bags,  of  the  value  of  f  205,  directed  to  S.  H.  Wilson 
&  Co.,  Oswego,  and  the  defendant  undertook  as  a  common  carrier  to 
carry  the  bags  to  Oswego,  and  there  deliver  them  to  the  consignees, 
and  also  mailed  a  bill  of  the  bags  to  S.  H.  Wilson  &  Co.,  Oswego. 
That  the  defendant  carried  the  bags  to  Oswego  the  same  day,  and 
soon  after  their  arrival  at  Oswego  and  on  the  same  day,  a  man  called 
at  the  office  of  the  defendant  there,  and  asked  defendant's  agent  if 
three  bales  of  bags,  directed  to  S.  H.  Wilson  &  Co.,  had  arrived. 
He  was  informed  that  they  had,  and  he  then  said  they  were  what  he 
wanted,  and  offered  to  and  did  pay  the  freight  thereon,  and  they 


348  CARRIERS   OF   GOODS. 

were  delivered  to  him  by  the  agent  of  the  defendant  upon  signing  a 
receipt  therefor  in  the  name  of  S.  H.  Wilson  &  Co.,  and  they  were 
taken  away.  That  the  plaintitf  did  not  know  any  person  or  firm 
by  the  name  of  S.  H.  "Wilson  &  Co.,  and  had  no  information  of  any 
such  person  or  firm,  except  what  was  contained  in  their  letter  to 
him  of  September  10th  and  in  the  letter  to  Morgan.  In  fact,  there 
was  no  such  firm  of  S.  H.  "Wilson  &  Co.  in  business  at  Oswego  or 
elsewhere,  and  the  letter  written  in  the  name  of  S.  H.  "Wilson  &  Co. 
and  the  order  were  part  of  a  scheme  on  the  part  of  some  person  or 
persons  to  defraud  the  plaintiff  of  his  property,  and  no  part  of  the 
purchase  price  has  been  paid,  nor  has  the  property  been  recovered 
or  the  person  who  received  the  same  from  the  defendant  been  traced. 
That  the  defendant,  when  said  bags  were  received  and  delivered, 
did  not  know  any  person  or  firm  by  the  name  of  S.  H.  "Wilson  &  Co., 
nor  did  the  defendant  know  the  person  to  whom  the  bags  were 
delivered,  nor  did  they  require  any  evidence  of  the  identity  of  the 
person,  or  of  his  being  connected  with  the  firm  of  S.  H.  Wilson  &  Co. 
That  it  was  the  usual  custom  of  the  defendant  not  to  deliver  goods 
to  a  stranger  without  his  being  identified  or  his  satisfj'ing  the 
defendant  by  papers  or  otherwise  that  he  was  entitled  to  receive 
them;  and  further,  that  reasonable  care  and  prudence  required  such 
precautions  to  be  taken.  That  the  person  to  whom  the  bags  were 
delivered  by  the  defendant  was  the  person  who  wrote  the  letters 
signed  S.  H.  Wilson  &  Co. ,  or  his  authorized  agent  to  receive  said 
bags  in  case  they  should  be  sent  pursuant  to  the  order  of  September 
loth.  That  there  was  no  evidence  from  which  it  could  be  found 
whether  his  name  was  S.  H.  Wilson  or  not.  That  when  the  plaintiff 
sent  the  bags  he  supposed  that  S.  H.  Wilson  &  Co.  was  the  name  of 
a  firm  at  Oswego,  and  when  the  defendant  delivered  them  at  Oswego 
they  had  no  knowledge  of  the  fraud,  and  supposed  that  the  person 
to  whom  they  were  delivered  was  a  member  of  or  rei)resentcd  the 
firm  of  S.  H.  Wilson  &  Co.  It  is  the  duty  of  a  carrier  to  carry  the 
goods  to  the  idace  of  delivery  and  deliver  them  to  the  consignee. 
When  goods  are  safely  conveyed  to  the  place  of  destination  and  the 
consignee  is  dead,  absent,  or  refuses  to  receive,  or  is  not  known  and 
cannot  after  reasonable  diligence  be  found,  the  carrier  may  be  dis- 
cliarged  from  furtlicr  resj)onsil)ility  as  carrier  by  placing  them  in  a 
jjroper  warehouse  for  and  on  account  of  tlic  owner.  Fisk  r,  Newton, 
1  Denio,  45.  The  responsibility  continues  as  carrier  until  discharged 
in  the  manner  above  stated.  Hence,  a  delivery  to  a  wrong  person, 
although  upon  a  forged  order,  will  not  exonerate  the  carrier  from 
rospon.sibility.  I'owcdl  i\  Myers,  L'G  Wend.  T)*.)!  [342j.  In  exainin- 
ing  the  cases,  the  distinction  between  the  lialiility  of  carriers  and 
warehousemen  must  be  kept  in  mind.  The  former  is  responsiljle  as 
insurer;  the  latter  for  ])roper  diligence  and  care  only,  in  the  ]»res- 
ervation  of  tl»e  projterty  and  its  <lelivery  to  the  true  owm  r.  The 
former  must,  at  their  |>eiil,  deliver  jiroperty  lo  tlie  true  owner,  for 


DELIVERY  BY  CARRIER.  349 

if  delivery  be  made  to  the  wrong  person,  either  by  an  innocent  mis- 
take or  through  framl  of  another,  they  will  be  responsible,  and  the 
wrongful  delivery  will  constitute  a  conversion.  McEntee  v.  The  New 
Jersey  Steamboat  Co.,  45  N.  Y.  34  [328].  It  is  of  the  liability  of  a 
warehouseman  after  the  responsibility  as  carrier  had  terminated  that 
the  chief  judge  is  speaking  in  the  opinion  in  Burnell  v.  The  N.  Y. 
Central  R.  R.  Co. ,  45  N.  Y.  184,  where  he  holds  that  the  defendant 
was  responsible  only  for  due  care  and  diligence.  In  the  present 
case  the  goods  were  consigned  to  S.  H.  Wilson  &  Co.,  Oswego. 
This  plainly  indicated  some  person,  or,  rather,  persons,  known  by 
and  doing  business  under  that  name.  But  as  there  was  no  such 
firm,  and  so  far  as  the  findings  or  case  show,  never  had  been, 
delivery  could  not  be  made  to  the  consignees.  Then,  as  already 
seen,  it  became  the  duty  of  the  carrier  to  warehouse  the  goods  for 
the  owner.  Instead  of  this,  the  defendant  delivered  them  to  a 
stranger  without  making  any  inquiry  as  to  who  or  what  he  was, 
simply  upon  his  inquiring  if  such  goods  for  Wilson  &  Co.  had 
arrived,  and  upon  being  informed  that  they  had,  saying  that  he 
wanted  them.  If  the  case  had  been  determined  by  the  referee  upon 
the  question  whether  due  care  had  been  used  by  the  defendant,  it 
would  have  been  necessary  to  determine  whether  the  goods  were  at 
the  time  held  as  carrier  or  as  bailee  of  another  character,  as  in  the 
latter  case  only  will  the  exercise  of  proper  care  exonerate  from 
liability  for  the  loss  of  the  property.  But  as  the  legal  conclusion 
of  the  referee  shows  that  the  judgment  was  not  based  upon  any 
finding  upon  that  question,  but  upon  the  legal  conclusion  of  the 
referee,  that  the  defendant  was  discharged  from  liability  by  having 
delivered  the  goods  to  the  person  who  wrote  the  letters  and  orders, 
or  his  authorized  agent,  it  is  unnecessary  to  determine  whether  the 
defendant  at  the  time  held  the  goods  as  carrier  or  warehouseman, 
because  if  the  legal  conclusion  is  correct,  a  delivery  to  this  person 
or  his  agent  would  have  discharged  the  defendant  in  either  case, 
entirely  irrespective  of  the  degree  of  care  exercised  in  making 
delivery.  The  entire  findings  of  the  referee  show  that  he  would 
have  held  the  defendant  liable  had  the  delivery  under  a  like  state  of 
facts  been  made  to  any  other  than  this  person.  The  opinion  of  the 
learned  judge,  given  at  the  General  Term,  shows  that  the  judgment 
was  affirmed  by  that  court  upon  the  same  ground,  and  that  the  case 
would  have  been  differently  decided  had  the  delivery  been  made  to 
some  other  person.  Indeed,  this  is  the  only  reason  that  can  with 
any  plausibility  be  given  for  the  judgment.  As  a  finding,  that 
proper  care  had  been  exercised  by  a  bailee  of  goods  whose  duty  it 
was  to  keep  them  for  the  owner,  when  he  had  delivered  them  to  an 
entire  stranger,  who  claimed  to  be  the  owner,  and  gave  no  evidence 
of  his  right  except  to  make  inquiry  if  they  had  arrived  for  the  con- 
signee, and  saying  that  he  wanted  them,  would  be  wholly  unsup- 
ported by  the  evidence.     The  question  is  whether  the  person  who 


350  CARRIERS   OF   GOODS. 

wrote  the  order  acquired  a  right,  so  far  as  the  defendant  was  con- 
cerned, to  a  delivery  of  the  goods;  in  other  words,  whether  as  to 
it  he  was  the  consignee.  If  he  was,  the  conclusion  of  the  referee 
was  correct.  In  that  case,  delivery  to  him  discharged  the  carrier 
upon  the  principle  that  any  delivery,  valid  as  to  the  consignee,  is  a 
defence  for  the  carrier  as  to  all  persons.  It  would  hardly  be  claimed, 
in  case  there  had  been  a  firm  doing  business  at  Oswego  under  the 
name  of  S.  H.  "Wilson  &  Co.,  a  swindler  would  make  himself  con- 
signee of  goods  or  acquire  any  right  whatever  thereto,  which  were 
in  fact  consigned  to  such  firm,  simply  by  showing  that  he  had  forged 
an  order  in  the  name  of  the  firm  directing  such  consignment.  If  he 
would  not  thereb}'  acquire  any  right  to  the  goods,  delivery  to  him 
would  not  protect  the  carrier  any  more  than  if  made  to  any  other 
person.  In  the  American  Express  Co.  v.  Fletcher,  25  Indiana,  492, 
the  facts  were  that  a  person  claiming  to  be  J.  O'Kiley  presented 
himself  to  a  telegraph  operator,  who  was  also  agent  of  the  express 
company,  and  presented  a  despatch  to  be  forwarded  to  the  plaintiff, 
signed  J.  O'lliley,  requesting  him  to  send  $1,900,  which  the  oper- 
ator sent  through.  That  in  due  time  the  operator,  in  his  capacity 
of  agent  for  the  express  company,  received  a  package  purporting  to 
contain  valuables,  addressed  to  J.  O'Riley,  whereupon  the  same  per- 
son who  had  sent  the  despatch  presented  himself  and  demanded  the 
package,  which  was  delivered  to  him.  It  turned  out  that  this  per- 
son was  not  J.  O'Riley,  but  a  swindler.  Held,  that  the  express 
company  was  liable  to  the  plaintiff  for  the  money.  The  case  is 
silent  as  to  whether  J.  O'Riley  was  a  fictitious  name,  but  I  infer 
that  it  was  not,  as  the  plaintiff  would  not  be  likely  to  forward  that 
amount  of  money  to  a  person  unknown  to  him.  It  will  be  seen  that 
this  was  a  much  stronger  case  for  the  company  than  is  that  of  the 
pre.sent  defendant,  so  far  as  care  was  concerned,  for  the  delivery 
was  made  to  the  person  known  by  the  company  to  be  the  one  who 
sent  tlie  despatch,  while  the  defendant  knew  notliing  wliatever  about 
the  letters  or  order,  or  how  the  goods  came  to  be  forwarded,  con- 
signed as  they  were.  But  the  case  directly  decides  that  no  right  to 
tlie  package  was  acquired  by  the  swindler  V)y  sending  a  desjjatch 
therefor  in  the  name  of  another.  If  no  right  is  acquired  by  sending 
a  despatch  in  tlie  name  of  a  real  j)erson,  it  is  a  little  difficult  to  see 
how  any  is  acquired  by  writing  in  tlie  name  of  a  firm  having  no 
existence,  especially  when  the  facts  show,  as  in  the  ])resent  case, 
the  consignor  supposed  he  was  dealing  witli  a  substantial  business 
firm,  and  the  consignment  showed  that  it  was  intended  to  be  made 
to  sucli  a  firm. 

In  Ward  v.  T\u-  Vennoiit  <S:  Mass.  It.  11.  [12  Vt.  Too]  one  ("oUins 
represented  to  the  plaintiff  that  there  was  a  i)erson  of  the  name  of  J. 
V.  lioborts  residing  at  Itoxbury,  Mass.,  and  fraudulently  induced  the 
plaintiff  to  consign  goods  to  liini.  In  fact,  no  surli  person  resided 
there.     Upon  the  arriv.il  of  the  goods  Collins  went  tf)  a  tnickni.iii  .iiid 


DELIVERY  BY  CARRIER.  351 

personated  Roberts,  and  as  such  sent  the  truckman  for  the  goods,  to 
whom  they  were  delivered  by  the  company.  Held,  that  the  com- 
pany was  liable  to  the  plaintiff  therefor.  That,  in  principle,  is  like 
the  present  case.  In  this  the  swindler  had  in  substance  represented 
to  the  plaintiff  that  there  was  a  business  firm  at  Oswego  wishing  to 
purchase  bags,  and  had  fraudulently  procured  a  consignment  of  bags 
from  the  plaintiff  to  this  firm,  when  in  fact  there  was  no  such  firm. 
This  gave  the  defendant  no  right  to  deliver  the  goods  to  any  one 
else.  The  argument  for  the  defendant  is  that  the  plaintiff  consigned 
the  goods  to  S.  H.  Wilson  &  Co.,  and  there  being  no  such  firm,  the 
person  signing  the  name  of  the  firm  to  the  letter  and  order  was  in 
respect  to  the  goods  to  be  regarded  as  the  firm  for  the  purpose  of 
delivery  by  the  defendant.  This  i^J^  ^irect  conflict  with  the 
intention  of  the  plaintiff,  apparent  from  the  consignment.  That 
authorized  a  delivery  to  S,  H.  Wilson  &  Co. ,  and  to  no  other. 
There  was  not  a  particle  of  proof  that  the  person  who  wrote  the 
letter  was  ever  known  to  any  one  by  that  name.  The  consignment 
did  not,  therefore,  authorize  a  delivery  to  him.  The  defendant  had 
no  knowledge  whatever  of  the  letters,  and  his  Avriting  them  furnished 
no  evidence  to  it  of  his  doing  business  in  that  name. 

Duff  V.  Budd,  7  Eng.  Com.  Law,  399,  was  a  case  much  like  the 
present.  The  evidence  that  the  person  who  received  the  goods  was 
the  same  stranger  who  ordered  them  in  a  fictitious  name,  was  equally 
strong  as  in  the  present  case,  yet  there  is  no  intimation  that  by 
this  fraud  he  acquired  any  right  to  the  goods  or  the  defendant  any 
authority  to  deliver  them  to  him,  and  the  plaintiff  was  held  entitled 
to  recover  of  the  carrier  therefor.  See  also  Birkett  v.  Willan,  4 
Eng.  Com.  Law,  540.  Heugh  v.  The  London  Railway  Co.,  5  Law 
Exch.  Reports,  51,  and  McKean  v.  Ivor,  6  id.  36,  are  relied  upon 
by  the  defendant.  In  the  former,  one  Nurse,  who  had  been  in  the 
employ  of  a  rubber  company  which  had  ceased  to  do  business,  wrote 
and  sent  to  the  plaintiff  an  order  for  goods  in  the  name  of  the 
company.  The  plaintiff  forwarded  the  goods  by  the  defendant,  a 
common  carrier,  consigned  to  the  company.  The  defendaiit  ten- 
dered the  goods  at  the  place  where  the  company  had  carried  on 
business.  The  persons  in  possession  refusing  to  receive,  they  were 
taken  away  by  the  defendant,  who,  according  to  the  course  of  busi- 
ness, wrote  a  letter  addressed  to  the  company,  advising  of  the 
receipt  of  the  goods  and  requesting  their  removal.  Kurse  there- 
after came  and  presented  this  letter,  with  an  order  for  the  delivery 
of  the  goods,  signed  in  the  name  of  the  company  by  him  to  the  de- 
fendant, who  thereupon  delivered  the  goods  to  him.  Held,  that  the 
liability  of  the  defendant  as  carrier  was  terminated  by  the  tender, 
and  that  whether  the  defendant  had  been  negligent  in  the  delivery 
was  a  question  of  fact  for  the  jury.  The  latter  was  a  case  where 
goods  had  been  sent  to  a  fictitious  firm  upon  a  fraudulent  order,  by 
the  plaintiff,  consigned  to  the  firm  at  71  George  Street,  Glasgow, 


352  CAREIERS   OF   GOODS. 

that  being  the  address  speeitied  in  the  order  by  the  defendant,  a  car- 
rier, who  upon  the  arrival  of  the  goods  followed  the  usage  universal 
among  carriers  at  Glasgow,  which  was  to  send  notice  of  the  arrival 
of  the  goods,  with  a  request  for  their  removal.  This  notice  was 
received  by  the  one  giving  the  order,  who  indorsed  the  name  of  the 
firm  thereon  and  presented  it  to  and  obtained  the  goods  from  the 
defendant,  Held,  that  the  defendant  having  delivered  tlie  goods 
according  to  the  universal  usage  of  carriers,  had  complied  with  the 
directions  of  the  consignor,  which  must  be  taken  as  including  such 
usage,  and  was  therefore  not  liable. 

In  Stephenson  r.  Hart,  4  Bing.  47G,  it  was  expressly  held  that 
the  carrier  had  no  right  to  make  delivery  to  the  writer  of  the  ficti- 
tious order.  But  it  is  said  that  the  plaintiff  intended  the  goods 
should  be  delivered  to  the  writer  of  the  order.  Not  at  all.  He  did 
not  consign  them  to  the  w^riter  of  any  order,  but  to  Wilson  &  Co. 
This  is  the  only  evidence  of  his  intention  as  to  the  persons  to  whom 
delivery  should  be  made.  It  is  further  said  that  it  was  the  plain- 
tiff's negligence  in  forwarding  the  goods  without  ascertaining  that 
there  was  in  fact  such  a  firm.  I  am  unable  to  see  what  the  defend- 
ant had  to  do  with  this.  Its  duty  was  to  deliver  to  the  firm,  and  if 
that  could  not  be  found,  to  warehouse  and  keep  for  the  owner.  The 
same  might  be  said  in  every  case  where  goods  were  forwarded  to  a 
consignee  supposed  to  be  at  a  particular  place,  but  who  in  fact  was 
not  there.  The  usage  of  the  defendant  cannot  avail  him  in  this 
case.  The  referee  has  found  just  what  was  done.  This  accords 
with  the  evidence,  in  which  there  was  no  conflict. 

The  judgment  appealed  from  must  be  reversed,  and  a  new  trial 
ordered,  costs  to  abide  event. 


SAMUEL  V.    CHENEY. 
135  Mass.  278.     1883. 

Tort,  against  a  common  carrier,  for  the  conversion  of  a  quantity 
of  cigars.  At  the  trial  in  the  Su])erior  Court,  before  Colbl'kn,  .1., 
the  jury  returned  a  verdict  for  tlic  defendant;  and  the  plaintiff 
alleged  exceptions.     The  facts  ai)i)ear  in  the  ()i)inion. 

MoKTox,  C.  J.  The  princii)al  facts  in  tliis  case,  regarded  in  tlie 
light  most  favorable  to  the  jdaintiif,  are  as  follows :  — 

In  June,  IHSl,  a  swindler,  assuming  the  namt'  of  A.  Swannick, 
sent  a  letter  to  the  jdaintiff  asking  fur  a  price  list  of  cigar.s.  and 
giving  his  address  as  "A.  Swannick,  V.  ().  box  lo'.in,  Saratoga 
Springs,  N.  Y."  The  plaintiff  replied,  addressing  liis  k-ttor  accord- 
ing to  this  direction.  The  swindler  then  .sent  another  letter  order- 
ing a  quantity  of  cigars.     Tin-  i-laintilT  forwar.lod  tlic  cigars  l)y  tlie 


DELIVERY  BY  CARRIER.  353 

defendant,  who  is  a  common  carrier,  and  at  the  same  time  sent  a 
letter  to  the  swindler  addressed  "A.  Swannick,  Esq.  ,P.  0.  box  1595, 
Saratoga  Springs,  N.  Y.,"  notifying  him  that  he  had  so  forwarded 
the  goods. 

There  was  at  the  time  in  Saratoga  Springs  a  reputable  dealer  in 
groceries,  liquors,  and  cigars,  named  Arthur  Swaniiick,  who  had  his 
shop  at  the  corner  of  Ash  Street  and  Franklin  Street,  and  who  issued 
his  cards  and  held  out  his  name  on  his  signs  and  otherwise  as  "  A. 
Swannick."  He  was  in  good  credit,  and  was  so  reported  in  the 
books  of  E.  Russell  and  Company,  a  well-known  mercantile  agency, 
of  whom  the  plaintiff  made  inquiries  before  sending  the  goods.  jSTo 
other  A.  Swannick  appeared  in  the  Saratoga  Directory  for  1881,  or 
was  known  to  said  mercantile  agency.  But  in  June,  1881,  a  man 
hired  a  shop  at  No.  16  Congress  Street,  Saratoga  Springs,  under  the 
name  of  A.  Swannick,  and  also  hired  a  box,  numbered  1595,  in  the 
post-office,  and  used  printed  letter-heads  with  his  name  printed  as 
"A.  Swannick,  P.  0.  box  1595."  This  man  wrote  the  letters  to  the 
plaintiff  above  spoken  of,  and  received  the  answers  sent  by  the 
plaintiff.     He  soon  after  disappeared. 

The  plaintiff  supposed  that  the  letters  were  written  by,  and  that 
he  was  dealing  with,  Arthur  Swannick.  He  sent  the  goods  by  the 
defendant,  the  packages  being  directed,  "A.  Swannick,  Saratoga 
Springs,  N.  Y." 

The  defendant  carried  the  packages  safely  to  Saratoga  Springs. 
On  July  1,  the  defendant,  by  his  agent,  carried  a  package  of  cigars 
directed  to  A.  Swannick  to  said  Arthur  Swannick,  who  refused  to 
receive  it  on  the  ground  that  he  had  ordered  no  cigars.  Afterwards, 
on  the  arrival  of  the  packages,  the  value  of  which  is  sought  to  be 
recovered  in  this  suit,  the  defendant  carried  the  same  to  the  shop 
No.  16  Congress  Street,  and  delivered  them  to  the  person  appearing 
to  be  the  occupant  of  the  shop,  and  took  receipts  signed  by  him  as 
"A.  Swannick." 

We  assume  that  his  real  name  was  not  A.  Swannick,  but  that  he 
fraudulently  assumed  this  name  in  Saratoga  Springs  and  in  his 
dealings  with  the  plaintiff. 

The  question  whether,  under  these  circumstances,  the  property  in 
the  goods  passed  to  the  swindler,  so  that  a  bona  fide  purchaser  could 
hold  them  against  the  plaintiff,  is  one  not  free  from  difficulty,  and 
upon  which  there  are  conflicting  decisions.  The  recent  case  of 
Cundy  v.  Lindsay,  3  App.  Cas.  459,  is  similar  to  the  case  at  bar  in 
many  of  its  features ;  and  it  was  there  held  that  there  was  no  sale, 
that  the  property  did  not  pass  to  the  swindler,  and  therefore  that 
the  plaintiffs  could  recover  its  value  of  an  innocent  purchaser.  That 
this  case  is  very  near  the  line  is  shown  by  the  fact  that  such  emi- 
nent judges  as  Blackburn  and  ]\[ellor  differed  from  the  final  decision 
of  the  House  of  Lords.     Lindsay  v.  Cundy,  1  Q.  B.  D.  348. 

But  it  is  not  necessary  to  decide  this  question,  because  the  lia- 

23 


354  CAiailEKS    OF   GOODS. 

bilitj'  of  the  defendant  as  a  common  carrier  does  not  necessarily 
turn  upon  it.  The  contract  of  the  carrier  is  not  that  he  will  ascer- 
tain who  is  the  owner  of  the  goods  and  deliver  them  to  him,  but 
that  he  will  deliver  the  goods  according  to  the  directions.  If  a  man 
sells  goods  to  A,  and  by  mistake  directs  them  to  B,  the  carrier's 
duty  is  performed  if  he  delivers  them  to  B,  although  tlie  unexpressed 
intention  of  the  forwarder  was  that  they  should  be  delivered  to  A. 

If,  at  the  time  of  this  transaction,  the  man  ■who  was  in  correspon- 
dence with  the  plaintiff  had  been  the  only  man  in  Saratoga  Springs 
known  as,  or  who  called  himself,  A.  Swauniek,  it  cannot  be  doubted 
that  it  would  have  been  the  defendant's  duty  to  deliver  the  goods  to 
him  according  to  the  direction,  although  he  was  an  impostor,  who 
by  fraud  induced  the  plaintiff  to  send  the  goods  to  him.  Dunbar  v. 
Boston  &  Providence  Railroad,  110  Mass.  26.  The  fact  that  there 
were  two  bearing  the  name  made  it  the  duty  of  the  defendant  to 
ascertain  which  of  the  two  was  the  one  to  whom  the  plaintiff  sent 
the  goods. 

Suppose,  upon  the  arrival  of  the  goods  in  Saratoga  Springs,  the 
impostor  had  appeared  and  claimed  them;  to  the  demand  of  the 
defendant  upon  him  to  show  that  he  was  the  man  to  whom  they 
were  sent,  he  replies,  "True,  there  is  another  A.  Swannick  here, 
but  he  has  nothing  to  do  with  this  matter;  I  am  the  one  who  ordered 
and  purchased  the  goods;  here  is  the  bill  of  the  goods,  and  here  is 
the  letter  notifying  me  of  their  consignment  to  me,  addressed  to 
me  at  my  P.  0.  box,  1595."  The  defendant  would  be  justified  in 
delivering  the  goods  to  him  whether  he  was  the  owner  or  not,  because 
he  had  ascertained  that  he  was  the  person  to  whom  the  plaintiff  had 
sent  them.  It  is  true  the  defendant  did  not  make  these  inquiries  in 
detail;  but  if,  by  a  rapid  judgment,  often  necessary  in  carrying  on 
a  large  business,  he  became  correctly  satisfied  that  the  man  to  whom 
he  made  the  delivery  was  the  man  to  whom  the  plaintiff  sent  the 
goods,  his  rights  and  liabilities  are  the  same  as  if  he  liad  jnirsued 
the  inquiry  mort^  minutely. 

The  plaintiff'  contends  tliat  lie  intended  to  send  tlie  goods  to 
Artlmr  Swannick.  It  is  equally  true  that  he  intended  to  send 
them  to  the  person  with  whom  he  was  in  correspondence.  We  think 
the  more  correct  statement  is,  that  he  intended  to  send  them  to  the 
man  wlio  onlered  and  agreed  to  pay  for  them,  supposing,  erro- 
neously, that  he  was  Arthur  Swannick.  It  seems  to  us  that  tlie 
defendant,  in  answer  to  the  ])laintiff's  claim,  may  well  say,  we  have 
delivered  the  goods  intrusted  to  us  according  to  your  directions,  to 
the  man  to  whom  you  sent  thom,and  who,  as  we  were  induced  to 
believe  by  your  acts  in  dealing  with  him,  was  the  man  to  wliom  you 
intended  to  send  them;  we  are  guilty  of  no  fault  or  negligence. 

The  case  at  bar  is  in  some  respects  similar  to  the  case  of  M'Kean 
f.  M'lvor,  L.  11.  C  Ex.  3G.  There  the  i)laintiffs,  induced  by  a  fie- 
titioua  order  sent  to  them  by  one  lleddell,  an  agent  of  theirs  to 


DELIVERY    BY   CARRIER.  355 

procure  orders,  sent  goods  by  the  defendants,  who  were  carriers,  ad- 
dressed to  "C.  Tait  &  Co.,  71  George  Street,  Glasgow."  There  was 
no  such  firm  as  C.  Tait  &  Co.,  but  Heddell  had  made  arrangements 
to  receive  the  goods,  at  No.  71  George  Street.  Upon  the  arrival  of 
the  goods,  the  defendants,  in  the  usual  course  of  business,  sent  a 
notice  to  71  George  Street  for  the  consignee  to  call  for  the  goods, 
the  notice  saying  that  it  ought  to  be  indorsed  so  as  to  operate  as  a 
delivery  order.  Heddell  indorsed  the  notice  in  the  name  of  "C. 
Tait  &  Co. ,"  and  sent  it  to  the  defendants  by  a  carter,  to  whom  the 
goods  were  delivered.  It  was  held  that  the  defendants  were  not 
liable,  upon  the  ground  that  no  negligence  was  shown,  and  that, 
having  delivered  the  goods  according  to  the  directions  of  the  plain- 
tiff, they  had  performed  their  duty;  and  the  fact  that  they  delivered 
to  some  person  to  whom  the  plaintiff  did  not  intend  delivery  to  be 
made,  was  not  sufficient  to  make  them  liable  for  a  conversion.  See 
Heugh  V.  London  &  North  Western  Railroad,  L.  E,.  o  Ex.  51; 
Clough  V.  London  &  North  Western  Railroad,  L.  R.  7  Ex.  2G. 

The  cases  of  Winslow  v.  Vermont  &  Massachusetts  Railroad,  42 
Vt.  700,  American  Express  Co.  v.  Fletcher,  25  Ind.  492,  and  Price 
V.  Oswego  &  Syracuse  Railway,  50  N.  Y.  213  [346],  differ  widely  in 
their  facts  from  the  case  at  bar,  and  are  distinguishable  from  it. 

Upon  the  facts  of  this  case,  we  are  of  opinion  that  the  defendant 
is  not  liable,  in  the  absence  of  any  proof  of  negligence ;  and  there- 
fore that  the  rulings  at  the  trial  were  sufficiently  favorable  to  the 
plaintiff.^ 

Exceptions  overruled. 

1  The  plaintiff  requested  the  judge  to  rule  that  on  the  facts,  which  were  undisputed 
and  agreed,  he  was  entitled  to  a  verdict.  The  judge  refused  so  to  rule.  The  plaintiff 
then  requested  the  judge  to  rule  that,  if  the  jury  believed  that  in  shipping  these 
goods  the  plaintiff  intended  as  the  consignee  A.  Swannick,  the  person  who  was  well 
rated  in  the  commercial  agency  books,  and  that  that  intent  was  properly  expressed  in 
the  address  on  the  packages,  and  that  the  name  of  the  person  to  whom  delivery  was 
in  fact  made  was  not  A.  Swannick,  they  must  find  a  verdict  for  the  plaintiff.  The 
judge  refused  so  to  rule,  and  instructed  the  jury  that,  the  intent  of  the  plaintiff  being 
uncommuuicated  to  the  defendant,  except  so  far  as  expressed  in  the  address  on  the 
packages,  was  of  itself  of  no  importance  ;  and  that  if  the  delivery  was  made  to  a  per- 
son who  was  known  at  Saratoga  Springs  by  that  name  and  no  other,  that  was  enough, 
so  far  as  the  question  of  name  affected  the  legal  result.  The  judge  then  left  the  single 
question  to  the  jury,  as  to  whether  the  defendant  acted  negligently  in  making  the  de- 
livery he  did,  instructing  them  further  that,  although  there  was  no  question  that  there 
was  a  misdelivery  of  the  goods  in  suit,  the  only  question  was,  whether  the  defendant 
was  guilty  of  negligence  in  making  this  misdelivery. 


356  CARRIERS   OF   GOODS. 

EDMUNDS    V.   MEECHAXTS'  DESPATCH  TRANSr.    CO. 
135  Mass.  283.     1S83. 

Three  actions  of  tort,  with  counts  in  contract,  against  a  com- 
mon carrier,  to  recover  the  value  of  certain  goods  intrusted  to  the 
defendant  by  the  plaintiffs,  at  Boston,  for  carriage  to  Dayton,  C)hio. 
At  the  trial  in  the  Superior  Court,  before  Rockwkll,  J.,  the  jury 
returned  verdicts  for  the  plaintiffs ;  and  the  defendant  alleged  excep- 
tions.    The  facts  appear  in  the  opinion. 

JkloKTOX,  C.  J.  These  three  cases  were  tried  together.  In  some 
features  they  resemble  the  case  of  Samuel  v.  Cheney,  ante,  278  [352]. 
In  other  material  features  they  differ  from  it.  They  also,  in  some 
respects,  differ  from  each  other.  In  two  of  the  cases  a  swindler, 
representing  liiniself  to  be  Edward  Tape  of  Dayton,  (Jhio,  who  is  a 
reputable  and  responsible  merchant,  api)eared  personally  in  Boston, 
and  bought  of  the  plaintiffs  the  goods  which  are  the  subject  of  the 
suits  respectively.  In  those  cases  we  think  it  clear,  upon  principle 
and  authority,  that  there  was  a  sale,  and  the  property  in  the  goods 
passed  to  the  purchasers.  The  minds  of  the  parties  met  and  agreed 
upon  all  the  terms  of  the  sale,  the  thing  sold,  the  price  and  tinu*  of 
payment,  the  person  selling  and  the  person  buying.  The  fact  tliat 
the  seller  was  induced  to  sell  by  fraud  of  the  buyer  made  the  sale 
voidable,  but  not  void.  He  could  not  have  supposed  that  he  was 
selling  to  any  other  person;  his  intention  Avas  to  sell  to  the  person 
present,  and  identified  by  sight  and  hearing;  it  does  not  defeat  the 
sale  because  the  buyer  assumed  a  false  name,  or  practised  any  other 
deceit  to  induce  the  vendor  to  sell. 

In  Cundy  v.  Lindsay,  ."3  Ai)p.  Cas.  459,  4(;4,  where  the  question 
was  whether  a  man,  who  in  good  faith  had  bought  cliattcls  of  a 
swindler  who  had  obtained  possession  of  them  by  fraud,  could  hold 
them  against  the  former  owner,  Lord  Chancellor  Cairns  states  the 
rule  to  be  tliat,  "if  it  turns  out  that  tlie  chattel  has  come  into  the 
hands  of  the  person  who  ])rofes.sed  to  sell  it.  by  a  df  facto  contract, 

that  is  to  say,  a  contract  wliicli  has  purported  bo  jiass  the  ijrojierty 

to  liim  from  the  owner  of  the  property,  — there  the  purchaser  will 
obtain  a  good  title." 

In  the  cases  before  us,  there  was  a  ^A- /"'Vm  contract,  ].urp«irtiiig, 
and  l)y  which  the  plaintiffs  intended,  to  ].ass  tlie  j.roperty  and  i)os- 
session  of  the  goods  to  the  person  buying  them;  and  we  are  of 
opinion  that  the  property  did  jiass  to  the  swindler  who  Ixnight  the 
goods.  The  sale  was  voidable  by  the  plaintiffs;  but  the  defendant, 
the  carrier  l)y  whom  they  were  forwarded,  had  no  duty  to  in(iuirr^ 
into  its  validity.  The  person  wlio  bought  them,  and  wlio  (-ailed 
himself  Edward  Tape,  owned  the  goods,  and  uj.on  tlx-ir  arrival  in 


DELIVEKY   BY   CARRIER.  357 

Dayton  had  the  right  to  demand  them  of  the  carrier.  Tn  delivering 
tliem  to  him,  the  carrier  was  guilty  of  no  fault  or  negligence.  It 
delivered  them  to  the  person  who  bought  and  owned  them,  who  went 
by  the  name  of  Edward  Pape,  and  thus  answered  the  direction  upon 
the  packages,  and  who  was  the  person  to  whom  the  plaintiffs  sent 
them.  Dunbar  v.  Boston  &  Providence  Railroad,  110  Mass.  26. 
The  learned  judge  Avho  tried  the  cases  in  the  Superior  Court  based 
his  charge  upon  a  different  view  of  the  law;  and,  as  the  three  cases 
were  tried  together,  there  must  be  a  new  trial  in  each. 

It  seems  to  have  been  assumed  that  the  same  questions  are  raised 
in  each  case.  It  is  proper  that  we  should  add  that  the  third  case 
differs  materially  from  the  others.  In  that  case,  the  contract  did 
not  purport,  nor  the  plaintiffs  intend,  to  sell  to  the  person  who  was 
present  and  ordered  the  goods.  The  swindler  introduced  himself  as 
a  brother  of  Edward  Pape  of  Dayton,  Ohio,  buying  for  him.  By 
referring  to  the  mercantile  agency,  he  tacitly  represented  that  he 
was  buying  for  the  Edward  Pape  who  was  there  recorded  as  a  man 
of  means.  The  plaintiffs  understood  that  they  were  selling,  and 
intended  to  sell,  to  the  real  Edward  Pape.  There  was  no  contract 
made  with  him,  because  the  swindler  who  acted  as  his  agent  had  no 
authority,  but  there  was  no  contract  of  sale  made  with  any  one  else. 
The  relation  of  vendor  and  vendee  never  existed  between  the  plain- 
tiffs and  the  swindler.  The  property  in  the  goods,  therefore,  did 
not  pass  to  the  swindler;  and  the  defendant  cannot  defend,  as  in 
other  cases,  upon  the  ground  that  it  has  delivered  the  goods  to  the 
real  owner.  Hardman  v.  Booth,  32  L.  J.,  N.  S.,  Ex.  105;  Kings- 
ford  V.  Merry,  26  L.  J.,  N.  S.,  Ex.  83;  Barker  v.  Dinsmore,  72 
Penn.  St.  427. 

Whether  the  defendant  has  any  other  justification  or  excuse  for 
delivering  the  goods  to  the  swindler  is  a  question  not  raised  by  this 
bill  of  exceptions,  and  not  considered  at  the  trial ;  and  therefore  we 
cannot  express  an  opinion  upon  it. 

Exceptions  sustained. 


WEPvNWAG  V.   PHIL.,    W.    &   B.    R.   CO. 
117  Penn.  St.  46.     1887. 

[Agreed  statement  of  facts.]  The  defendants  are  common  car- 
riers of  goods  between  Philadelphia,  Pa.,  and  Washington,  D.  C. 
William  P.  Wernwag  and  T.  Eussell  Dawson,  trading  as  Wernwag 
&  Dawson,  are  dry-goods  commission  merchants,  doing  business  in 
the  city  of  Philadelphia.  The  firm  of  E.  P.  Witmer  &  Co.,  of 
Baltimore,  were  the  plaintiffs'  agents  for  the  sale  of  their  goods  in 
the  city  of  Washington,  D.  C     The  said  firm  of  E.  F.  Witmer  & 


358  CARRIERS   OF   GOODS. 

Co.  employed  one  Wilbur  P.  ^Murphy  to  take  orders  for  plaintiffs' 
goods  in  Washington,  D.  C.  The  said  Murphy  visited  one  Leopold 
r.ehrend,  doing  a  dry -goods  business  in  said  city,  and  took  an  order 
for  certain  goods  of  plaintiffs.  This  order  was  entered  by  tlie  said 
Murphy  on  one  of  the  blanks  of  E.  F.  Witmer  &  Co.,  and  was  trans- 
mitted to  the  plaintiffs.  When  it  was  received  by  them  it  read  as 
follows :  — 

Baltimoke,  Nov.  3d.  1883. 
Messrs.  Wf.rxwag  &  Dawson. 

Philadelphia : 
Ship  to   L.    Behrend, 

Washiugton,   D.    C, 
By   Fast   Freight. 
Terms   5  |  30 — 30   davs   extra   dating. 

4  l"  5 

&c.,  &c.,  &c. 

(Signed)  E.    F.    Witmer   &   Co. 

When  plaintiffs  received  this  order,  for  the  purpose  of  ascertain- 
ing the  financial  responsibility  of  L.  Behrend,  they  examined  tlie 
volume  of  commercial  reports  in  their  possession,  which  purported 
to  give  a  full  list  of  merchants  doing  business  in  Washington, 
D.  C,  but  the  name  of  L.  Behrend  was  not  on  the  list.  They  had, 
however,  previously  sold  goods  to  one  A.  Behrend,  doing  a  dry-goods 
business  in  said  city  of  Washington,  who  had  been  satisfactory  to 
tliera  as  a  customer  in  every  respect;  and  in  consequence  of  not 
finding  the  name  of  L.  Behrend  in  the  commercial  report,  they  sup- 
posed that  the  salesman  had  inade  a  mistake  in  entering  the  name  of 
the  purchaser  on  the  order,  and  had  written  L.  Behrend  instead  of 
A.  Behrend,  intending  to  write  the  latter. 

Being  of  this  opinion,  the  plaintiffs  determined  to  ship  the  goods 
ordered  to  A.  Behrend,  and  on  November  5,  1883,  shipped  to  him 
by  the  defendant  railroad  five  i)ieces  of  black  cashmere  and  one  pii-ce 
of  worsted,  of  the  total  value  of  §242.37.  The  goods  were  charged 
to  A.  Behrend,  in  the  liooks  of  the  jtlaintiffs;  the  box  was  marked 
"A.  Behrend,  Washington,  D.  C. ;  "  tlie  bill  of  lading  or  receijit 
given  for  the  goods  by  tlie  defendant  describes  the  goods  as  marked 
A.  Bielirend,  and  a  lull  was  made  out  by  jdaintiffs  in  tlic  nanu'  of  A. 
Belirciifl,  and  was  sent  l>y  post  addressed  to  A.  Belirend. 

The  firm  of  E.  F.  Witmer  iK:  Co.  were  agents  of  the  jdaintiffs  only 
for  the  purpose  of  soliciting  orders  for  goods.  The  jilaintiffs  reserved 
to  themselves  the  right  to  determine,  on  the  receipt  of  an  order 
from  E.  F.  Witmer  vS:  Co.,  wlu'tlier  or  not  they  would  .ship  the 
goods  ordered,  to  the  jiarty  ordering  the  same;  and  the  said  E.  F. 
Witmer  &  Co,  had  nothing  whatever  to  do  witli  the  delivery  of  tli(? 
goods  8hii)ped  on  orders  forwarded  by  tliem.  That  was  controlled 
entirely  by  plaintiffs. 

When  the  package  of  goods  aforesaid  arriveil  in  Wasliington  over 


DELIVERY   BY   CARRIER.  359 

the  line  of  the  defendant's  road,  it  was  claimed  by  the  said  Leopold 
Behrend.  The  said  A.  Behrend,  to  whom  the  plaintiffs  supposed  they 
were  selling  the  goods,  and  whose  name  was  on  the  box,  was  not  then 
in  business  in  Washington,  though  he  was  living  there  at  the  time. 

Before  delivering  the  goods  to  the  said  Leopold  Behrend,  the  agent 
of  the  railroad  company  defendant  inquired  of  the  said  Wilbur  F. 
Murphy,  the  agent  who  had  taken  the  order,  whether  he  had  sold  any 
goods  to  Leopold  Behrend,  and  what  class  of  goods  they  were;  and 
after  Murphy  had  said  that  he  had  sold  goods  to  Leopold  Behrend, 
and  had  described  them,  the  agent  of  the  defendant  delivered  them 
to  Leopold  Behrend.  The  goods  so  delivered  were  the  same  goods 
Avhicli  plaintiffs  had  shipped  to  A.  Behrend  as  aforesaid. 

After  the  plaintiffs  had  delivered  the  said  goods  to  defendant  for 
transportation  on  iSTovember  5,  1883,  they  heard  nothing  concerning 
them  until  they  received  a  notice,  dated  January  14,  1884,  that 
Leopold  Behrend  had  assigned  his  property  for  the  benefit  of  his 
creditors,  and  requesting  them  to  forward  a  statement  of  their  claim 
to  his  assignee. 

The  assigned  estate  of  the  said  Leopold  Behrend  never  paid  any 
dividend  to  the  general  creditors,  and  the  goods  so  shipped  by  them 
and  delivered  by  the  defendant  to  the  said  Leopold  Behrend  were 
totally  lost  to  plaintiffs. 

If  the  court  be  of  the  opinion  that  on  the  above  facts  their  judg- 
ment  should  be  for  the  plaintiffs,  then  judgment  is  to  be  entered  for 
plaintiffs  for  .^242.37,  with  interest  from  November  5,  1883;  but,  if 
not,  then  judgment  to  be  entered  for  the  defendant,  the  costs  to 
follow  the  judgment,  and  either  party  reserving  the  right  to  sue  out 
a  writ  of  error. 

The  judgment  of  the  court  was  for  the  defendant,  no  opinion 
being  filed.  Thereupon  the  plaintiffs  took  this  writ,  assigning  for 
error  the  entry  of  said  judgment. 

Mr.  Justice  GREE>r.  "From  the  facts  appearing  in  the  case  stated 
it  is  manifest  that  the  plaintiff  intended  to  sell,  and  in  point  of 
fact  did  consign,  the  goods  in  question  to  A.  Behrend  and  not  to  L. 
Behrend.  They  knew  the  former  and  were  satisfied  to  sell  to  him. 
They  did  not  know  the  latter  and  did  not  intend  to  sell  to  him. 
They  supposed  that  A.  Behrend  was  intended  as  the  purchaser  in 
the  order,  though  L.  Behrend  was  named.  Granting  this  to  be  a 
mistake  of  theirs  in  the  reading  of  the  order,  it  does  not  in  the 
least  alter  the  fact  that  A.  Behrend  was  the  person  to  whom  they 
supposed  they  were  selling.  However  that  may  be,  they  certainly 
consigned  the  goods  to  A.  Behrend,  and  there  was  then  such  a  per- 
son living  in  Washington,  the  place  to  which  the  goods  were 
shipped. 

It  cannot  be  questioned  for  a  moment  that  it  was  the  duty  of  the 
carrier  to  deliver  the  goods  to  the  person  to  whom  the  owner  con- 
signed them.     If  the  carrier  does  not  so  deliver  them,  he  acts  at  his 


860  CARRIEKS    OF    GOODS. 

peril,  and  the  whole  risk  of  a  wrong  delivery  rests  upon  him.  In 
Shenk  v.  Steam  Propeller  Co. ,  GO  Pa.  109,  we  said,  Sharswood,  J. : 
"  Whatever  doubt  may  hang  over  the  question  as  to  the  termination 
of  a  carrier's  or  other  bailee's  responsibility,  there  is  one  point 
which  is  indisputable,  that  he  must  take  care  at  his  peril  that  the 
goods  are  delivered  to  the  right  person,  for  a  delivery  to  a  wrong 
person  renders  him  clearly  responsible  though  innocently  and  by 
mistake." 

In  the  present  case  the  goods  were  delivered  to  L.  Behrend,  and, 
as  between  the  plaintiffs  and  the  carrier,  that  was  undoubtedly  a 
wrong  delivery,  liut  it  is  argued  that  the  delivery  to  L.  Behrend 
was  made  in  consequence  of  the  direction  of  ]\[urphy,  who  it  is  said 
was  the  plaintiffs'  agent.  If,  in  the  case  stated,  it  appeared  that 
Murphy  did  direct  the  delivery  to  L.  Behrend,  this  contention  would 
have  great  force;  because  it  was  ]\[urphy  who  sold  tlie  goods  and 
sent  the  order;  and  it  would  be  difficult  for  the  plaintiffs  to  escape 
the  consequences  of  his  act  in  directing  the  delivery.  But  the  only 
averment  upon  this  subject  which  the  case  stated  contains,  is  in  the 
following  words :  "  Before  delivering  the  goods  to  the  said  Leopold 
Behrend,  the  agent  of  the  railroad  company  defendant  inquired  of 
the  said  Wilbur  F.  Murphy,  the  agent  who  had  taken  the  order, 
whether  he  had  sold  any  goods  to  Leopold  Behrend  and  wliat  class 
of  goods  they  were;  and  after  !Murphy  had  said  that  lie  had  sold 
goods  to  Leopold  Behrend,  and  had  described  them,  the  agent  of 
the  defendant  delivered  them  to  Leopold  l>ehrend.  The  goods  so 
delivered  were  the  same  goods  which  plaintiff's  liad  sliipi)ed  to  A. 
Behrend  as  aforesaid."  From  this  it  appears  that  ]\Iurpliy  gave  no 
directions  to  deliver  the  goods  to  any  one.  He  merely  said  he  had 
sold  goods  to  L.  Behrend  and  described  them.  Granting  that  they 
were  the  same  kind  of  goods,  and  even  the  same  goods,  which  ^lurphy 
had  sold  to  L.  lielirend  (and  this  important  fact  is  nut  mentioned  in 
the  case  stated),  yet  that  was  as  far  as  Murpliy  went,  or  as  lie  was 
asked  to  go,  in  giving  information.  The  effect  of  tliat  information, 
as  sufficing  to  exonerate  the  defendant  from  liability  for  a  wrong 
<h*livery,  was  a  matter  of  wliich  tlie  defendant  tlirough  its  agent 
took  the  entire  risk.  In  tliis  at  least  tlie  plaintiffs  were  in  no  fault. 
Their  agent,  if  Murphy  was  their  agent,  simply  told  the  defendant's 
agent  that  he  had  sold  goods  to  L.  liehrend  and  described  tliem,  and 
thereupon  the  defendant's  agent  delivered  these  j)articular  goods  to 
L.  liehrend.  P»y  what  autliority  did  ho  do  this?  The  goods  were 
consigned  to  another  jierscjii,  and  the  defendant's  duty  was  to  deliver 
to  that  person.  Surely  tliat  <luty  was  not  discharged  by  a  delivery 
to  one  who  was  not  the  consignee,  merely  because  the  jjlaintiffs' 
agent  ha<l  sold  similar  goods  to  such  a  person.  The  fact  still  re- 
mained that  the  goods  were  not  delivered  to  the  one  to  whom  they 
were  eonsignetl.  'I'he  entire  risk  of  a  delivery  to  tlie  right  person 
waa  assumed  by  the  defendajit,  and  a  wrong  delivery  was  made  by 


DELIVERY  BY  CAEEIEK.  361 

the  mistake  of  the  defendant's  agent,  which,  of  course,  is  their  mis- 
fortune. We  are  clearly  of  opinion  that  the  plaintiffs  were  entitled 
to  judgment  on  the  case  stated. 


f.    Stoppage  in  Transitu. 
HUTCHINSON   ON   CAERIEKS. 

§   409.    Carriers     may    show     Stoppage     to     excuse    Delivery.  — 

Another  excuse  which  the  carrier  may  set  up  for  the  non-delivery 
of  the  goods  is  that  the  vendor  has  exercised  his  right  of  stoppage 
in  transitu.  This  right  arises  upon  the  discovery  by  the  vendor, 
after  the  sale  of  the  goods  on  a  credit,  of  the  insolvency  of  the 
buyer,  and  is  said  to  be  based  on  the  plain  reason  of  justice  and 
equity,  that  one  man's  goods  shall  not  be  applied  to  the  payment  of 
another  man's  debts.  If,  therefore,  after  the  vendor  has  delivered 
the  goods  out  of  his  own  possession,  and  has  put  them  into  the  hands 
of  the  carrier  for  delivery  to  the  buyer,  he  discovers  that  the  buyer 
is  insolvent,  he  may  retake  the  goods,  if  he  can,  before  they  reach 
the  buyer's  possession,  and  thus  avoid  having  his  property  applied 
to  paying  debts  due  by  the  buyer  to  other  people.  This  right  of 
the  vendor  of  the  goods  is  held  to  continue  from  the  time  he  parts 
with  their  possession  until  they  have  come  into  the  actual  possession 
of  the  buyer,  and  may  be  enforced  by  him  no  matter  into  whose  pos- 
session they  may  have  come  in  the  course  of  the  transportation,  at 
any  time  before  their  delivery  to  the  buyer  or  to  his  agent,  or  to  a 
purchaser  of  them  from  the  buyer  by  a  bona  fide  indorsement  and 
transfer  of  the  bill  of  lading.  The  right  is  highly  favored  by  the 
law  on  account  of  its  intrinsic  justice,  and  prevails  almost  uni- 
versally among  civilized  nations;  but  it  arises  only  in  favor  of  one 
who  stands  in  the  relation  of  vendor  to  the  goods. 

§  410.  How  Right  exercised.  —  No  particular  form  or  mode  has 
been  held  necessary  in  the  exercise  of  this  right,  and  it  has  even 
been  said  that  the  vendor  was  so  much  favored  in  exercising  it  as 
to  be  justifiable  in  getting  his  goods  back,  by  any  means  not  crim- 
inal, before  they  reached  the  possession  of  an  insolvent  vendee. 
All  that  is  required  is  some  act  or  declaration  of  the  vendor,  or  his 
agent,  countermanding  the  delivery,  and  the  usual  mode  is  by  a 
simple  notice  to  the  carrier,  stating  the  vendor's  claim,  forbidding 
delivery  to  the  vendee,  or  requiring  that  the  goods  shall  be  held 
subject  to  the  vendor's  orders.  The  vendor  may,  however,  and  some- 
times does,  resort  to  a  possessory  legal  action,  such  as  replevin  or 
attachment,  in  the  first  instance,  and  takes  the  goods  by  legal 
process,  either  from  the  carrier  himself  or  from  some  officer  who 
has  seized  them  for  a  debt  of  the  vendee.     Or  resort  may  be  had  to 


362  CARRIERS   OF   GOODS. 

a  bill  in  equity,  the  jurisdiction  of  which  to  enforce  the  vendor's 
right  of  stoppage  is  said  to  be  unquestionable. 

§  421.  Duty  and  Liability  of  Carrier  after  Notice.  —  The  insol- 
vency of  the  buyer  is  essential  to  the  existence  of  the  right  of  the 
vendor  to  stop  the  goods.  If,  therefore,  the  former  ^be  solvent  at 
the  time  of  its  attempted  exercise,  the  carrier,  if  he  know  the  fact, 
will  be  not  only  justified  in  refusing  to  give  up  the  goods  or  to  pay 
attention  to  the  notice,  but  it  would  be  his  duty  to  do  so.  He  obeys 
the  order  or  demand  at  his  peril  in  any  case.  For,  while  a  rightful 
stoppage  protects  the  carrier  against  the  claims  of  the  consignee,  yet 
if  it  should  turn  out  that  the  purchaser  of  the  goods  was  solvent, 
the  notice  or  demand  would  be  entirely  without  autliority.  If,  there- 
fore, the  carrier  refuse  to  give  up  the  goods  to  the  consignee,  who  is 
solvent,  upon  his  demand,  the  latter  might  maintain  an  action  of 
trover  against  him  at  once.  If,  on  the  other  hand,  the  carrier  fail 
to  withhold  the  goods  upon  a  notice  to  do  so,  or  to  surrender  their 
possession  to  the  vendor  upon  his  demand,  or  if,  after  such  notice 
or  demand,  he  should  deliver  them  to  the  buyer,  and  it  should  turn 
out  that  the  latter  was  insolvent,  the  carrier  will  be  liable  to  the 
vendor,  at  least  to  the  extent  of  the  buyer's  indebtedness  for  the 
goods.  It  has  therefore  been  said  that,  "as  the  carrier  obeys 
the  stoppage  in  transitu  at  his  peril,  if  the  consignee  be  in  fact  sol- 
vent, it  would  seem  no  unreasonable  rule  to  require  that,  at  the  time 
the  consignee  was  refused  the  goods,  he  should  have  evidenced  his 
insolvency  by  some  overt  act."  But  in  the  case  of  The  Tigress 
['*>2  L.  T.  Adm.  07]  this  suggestion  is  rejected,  tlie  judge  saying 
that  the  proof  of  the  conditions  on  which  the  vendor's  riglits  de^jend 
would  always  be  difficult,  often  impossible,  at  the  time  of  their 
exercise;  "for  instance,  whether  the  vendee  is  insolvent  may  not 
transpire  till  afterwards,  when  the  bill  of  exchange  for  the  goods 
becomes  due;  for  it  is,  as  I  conceive,  clear  law  that  tlie  riglit  to  stop 
does  not  require  tlie  vendee  to  liavc  been  fonml  insolvent.'' 

§  422.  Course  to  be  pursued  by  Carrier,  for  his  own  Protection.  — 
The  law  of  stoppage  in  transitu,  therefore,  l)i'C()incs  of  great  impor- 
tance to  the  common  carrier;  and  when  a  notice  is  given  or  a 
demand  is  made  upon  him  for  the  goods  by  a  vendor  who  claims 
the  right  to  avail  himself  of  it  in  the  particular  case,  it  i)laces  him 
in  very  nearly  the  same  situation  as  when  a  demand  is  made  for  the 
goods  by  one  who  claims  adversely  to  tlie  bailor  or  his  consignee. 
If  it  V>e  doubtful  whetlier  the  right  exists  to  stop  the  goods,  the 
carrier  may,  as  in  that  case,  instead  of  refusing  to  comply  with  tlio 
notice  or  the  demand,  require  that  he  shall  be  allowed  a  reasonabh: 
time  to  investigate  the  condition  of  the  buyer;  and  if,  after  inquiry, 
he  -'  "  '  unable  to  satisfy  liimself,  and  does  not  choose  to  assume 
the  .Wility  of  a  delivery  to  either  seller  or  buyer,  or  to  aet 

upon  the  demand  of  the  vendor  that  tlie  goods  shall  be  withlield 


DELIVERY  BY  CARRIER.  363 

from  the  consignee,  he  may,  for  his  own  security,  resort  to  legal 
proceedings  to  have  the  question  determined,  as  in  the  case  of 
adverse  claimants  of  the  property. 


g.    Seizure  U7ider  Legal  Process. 

STILES   V.    DAVIS. 
1  Black  (U.  S.)  101.     1861. 

Mr.  Justice  Nelsox.  The  case  was  this:  The  plaintiffs  below, 
Davis  and  Barton,  had  purchased  the  remnants  of  a  store  of  dry- 
goods  of  the  assignee  of  a  firm  at  Janesville,  Wisconsin,  who  had 
failed,  and  made  an  assignment  for  the  benefit  of  their  creditors. 
The  goods  were  packed  in  boxes,  and  delivered  to  the  agents  of  the 
Union  Despatch  Company  to  be  conveyed  by  railroad  to  Ilion, 
Herkimer  County,  Xew  York. 

On  the  arrival  of  the  goods  in  Chicago,  on  their  way  to  the  place 
of  destination,  they  were  seized  by  the  sheriff,  under  an  attachment 
issued  in  behalf  of  the  creditors  of  the  insolvent  firm  at  Janesville, 
as  the  property  of  that  firm,  and  the  defendant,  one  of  the  propri- 
etors and  agent  of  the  Union  Despatch  Company  at  Chicago,  was 
summoned  as  garnishee.  The  goods  were  held  by  the  sheriff,  under 
the  attachment,  until  judgment  and  execution,  when  they  were  sold. 
They  were  attached,  and  the  defendant  summoned  on  the  third  of 
November,  1857;  and  some  days  afterwards,  and  before  the  com- 
mencement of  this  suit,  which  was  on  the  sixteenth  of  the  month, 
the  plaintiffs  made  a  demand  on  the  defendant  for  their  goods, 
which  was  refused,  on  the  ground  he  had  been  summoned  as  gar- 
nishee in  the  attachment  suit. 

The  court  below  charged  the  jury  that  any  proceedings  in  the  State 
court  to  which  the  plaintiffs  were  not  parties,  and  of  which  they 
had  no  notice,  did  not  bind  them  or  their  property;  and  further, 
that  the  fact  of  the  goods  being  garnished,  as  the  property  of  third 
persons,  of  itself,  under  the  circumstances  of  the  case,  constituted 
no  bar  to  the  action;  but  said  the  jury  might  weigh  that  fact  in 
determining  whether  or  not  there  was  a  conversion. 

We  think  the  court  below  erred.  After  the  seizure  of  the  goods 
by  the  sheriff',  under  the  attachment,  they  were  in  the  custody  of 
the  law,  and  the  defendant  could  not  comply  with  the  demand  of 
the  plaintiffs  without  a  breach  of  it,  even  admitting  the  goods  to 
have  been,  at  the  time,  in  his  actual  possession.  The  case,  how- 
ever, shows  that  they  were  in  the  possession  of  the  sheriff's  officer 
or  agent,  and  continued  there  until  disposed  of  under  the  judgment 


364  CARRIERS    OF   GOODS. 

upon  the  attachment.  It  is  true,  that  these  goods  had  been  delivered 
to  the  defendant,  as  carriers,  by  the  plaintiffs,  to  be  conveyed  for 
them  to  the  place  of  destination,  and  were  seized  under  an  attach- 
ment against  third  persons;  but  this  circumstance  did  not  impair 
the  legal  effect  of  the  seizure  or  custody  of  the  goods  under  it,  so  as 
to  justify  the  defendant  in  taking  them  out  of  the  hands  of  the 
sheriff.  The  right  of  the  sheriff  to  hold  them  was  a  question  of 
law,  to  be  determined  by  the  proper  legal  proceedings,  and  not  at 
the  will  of  the  defendant,  nor  that  of  the  plaintiffs.  The  law  on 
this  subject  is  well  settled,  as  may  be  seen  on  a  reference  to  the 
cases  collected  in  sections  453,  290,  350,  of  Drake  on  Attach't,  2d 
edition. 

This  precise  question  was  determined  in  Verrall  r.  Eobinson, 
Turwhitt's  Exch.  E.  1069;  4  Dowling,  242,  S.  C.  There  the  plain- 
tiff was  a  coach  proprietor,  and  the  defendant  the  owner  of  a  car- 
riage depository  in  the  city  of  London.  One  Banks  hired  a  chaise 
from  the  plaintiff,  and  afterwards  left  it  at  the  defendant's  deposi- 
tory. While  it  remained  there,  it  was  attached  in  an  action  against 
Banks;  and,  on  that  ground,  the  defendant  refused  to  deliver  it 
up  to  the  plaintiff  on  demand,  although  he  ailmitted  it  to  be  his 
property. 

Lord  AiuxGEU,  C.  B.,  observed  that  the  defendant's  refusal  to 
deliver  the  chaise  to  the  plaintiff  was  grounded  on  its  being  on  his 
premises,  in  the  custody  of  the  law.  That  this  was  no  evidence 
of  a  wrongful  conversion  to  his  own  use.  After  it  was  attached  as 
Banks'  property,  it  was  not  in  the  custody  of  the  defendant,  in  such 
manner  as  to  permit  him  to  deliver  it  up  at  all.  And  Aldeksox,  B., 
observed:  Had  the  defendant  delivered  it,  as  requested,  he  would 
have  been  guilty  of  a  breach  of  law. 

The  plaintiffs  have  mistaken  their  remedy.  They  should  have 
brought  their  action  against  the  officer  who  seized  the  goods,  or 
against  the  plaintiffs  in  tlie  attachment  suit,  if  tlie  seizure  was  made 
under  their  direction.  As  to  these  parties,  the  process  being  against 
third  i)ersons,  it  would  have  furnished  no  justification  if  the  i)lain- 
tiff  could  have  maintained  a  title  and  right  to  possession  in  them- 
selves. 

Judgment  of  the  ruurt  bcloir  irrcrard. 


iJLiVEX  r.  HUDSON  i;ivi:k  n.  cu. 

ai;  N.  Y.  4n:5.     1^(J7. 

Pakkrr,  J.  On  the  second  day  of  Sci.tcnUxT,  1S50,  the  plaintiff's 
delivered  to  tlie  defendants,  at  tlieir  dei)ot.  in  the  viUage  of  Sing 
Sing,   Westchester  County,    twenty-nine   cases  of  saw  j)late8  and 


DELIVERY   BY   CARRIER.  365 

handles,  of  the  vahie  of  $4,338.82,  for  transportation  to  the  city  of 
New  York,  which  were  on  that  day  placed  by  the  defendant  in  their 
freight  cars  for  that  pnrpose. 

Before  the  regular  hour  for  the  departure  of  the  train  in  which 
they  were  to  go,  a  complaint  was  made  on  oath  by  one  Cheeseman, 
to  a  justice  of  the  peace  at  Sing  Sing,  to  the  effect  that  the  said 
merchandise  had  been  stolen  or  embezzled  from  the  Eagle  Saw 
Manufacturing  Company  at  Sing  Sing  (of  which  company  Cheese- 
man  claimed  to  be  the  secretary),  and  that  he  suspected  that  the 
said  property  was  concealed  in  a  railroad  car  at  the  Sing  Sing  depot. 
The  magistrate  thereupon  issued  a  warrant  to  search  for  the  prop- 
erty, and  delivered  it  to  aj3onstable  of  the  town,  who,  in  proceeding 
under  it,  on  the  morning  of  the  3d  of  September,  forcibly  opened 
the  car  in  which  the  merchandise  was  locked,  and  seized,  and  took 
the  same  before  the  justice,  who  thereupon  sent  the  same  to  the 
place  of  business  of  the  said  manufacturing  company,  and  there 
delivered  the  same  to  said  Cheeseman,  for  said  company.  The 
plaintiff,  Bliven,  was  at  such  place  of  business  on  the  morning  of 
the  day  on  which  the  merchandise  was  so  delivered,  and  was  then 
made  acquainted  with,  and  fully  knew,  all  the  circumstances  attend- 
ing the  taking  of  said  merchandise  out  of  the  possession  of  the 
defendants,  as  before  stated. 

It  further  appears,  by  the  findings  of  the  referee  before  whom  the 
cause  was  tried,  that  the  certificate,  by  the  filing  of  which  on  the 
28th  of  November,  1858,  the  company  became  incorporated,  provided 
for  the  management  of  its  affairs  by  five  trustees,  of  whom  plaintiff 
Bliven  was  one,  and  Cheeseman  one;  and  that  by  the  by-laws,  three 
trustees  constituted  a  quorum ;  that  on  the  organization  of  the  com- 
pany, a  president,  treasurer,  and  secretary  were  chosen  from  the  five 
trustees,  Bliven  being  the  treasurer.  The  manufacturing  carried  on 
by  the  company  was  done  in  the  Sing  Sing  prison,  by  the  hired  labor 
of  convicts,  in  shops  provided  for  the  company  and  under  a  superin- 
tendent employed  by  the  company.  Immediately  upon  the  organiza- 
tiouj  a  contract  was  made  by  the  company  with  the  plaintiffs,  by 
"which  plaintiffs  were  to  have  the  sale  of  all  articles  made  by  the 
company,  on  a  commission,  and  were  to  make  advances  to  the  com- 
pany, and  hold  all  the  articles  consigned  to  them  as  security  for 
such  advances.  And  subsequently,  on  the  30th  of  June,  1859,  the 
company  gave  the  plaintiffs  a  chattel  mortgage  on  all  their  fixtures 
and  stock,  manufactured  and  unmanufactured,  and  all  their  other 
goods  and  chattels  then  or  thereafter  to  be  at  the  works  in  Sing  Sing 
prison,  as  security  for  the  payment  to  plaintiffs  on  demand,  of  all 
advances  made,  or  to  be  made,  by  them  to  the  company. 

On  the  31st  of  August,  1859,  at  an  adjourned  meeting  of  the  trus- 
tees, the  said  Cheeseman  and  one  other  trustee,  in  the  absence  of 
the  others,  assumed  to  remove  the  president,  and  declare  his  office 
as  trustee,  vacant,  and  to  elect  one  Francis  trustee  in  his  place;  and 


366  CARRIERS   OF   GOODS. 

at  a  subsequent  time  in  New  York,  to  which  they  adjourned,  assumed 
in  conjunction  with  said  Francis,  to  remove  tlie  secretary  from  his 
office,  as  such,  and  to  appoint  Cheeseman  in  his  phice. 

Cheeseman  thereupon  proceeded  to  Sing  Sing,  to  the  works  of  the 
company  in  the  prison,  and  took  possession  as  secretary,  notifying 
Hawk'y,  the  secretary-,  of  his  removal. 

Un  the  2d  of  September,  in  the  absence  of  Cheeseman  and  the 
superintendent,  Hawley,  still  claiming  to  be  secretary,  went  with 
Bliven  to  the  premises,  and  caused  the  articles  of  merchandise  in 
question,  which  were  not  in  a  state  of  completeness  for  the  market, 
to  be  boxed  up  and  delivered  to  Bliven  for  the  plaintiffs,  and  he 
thereupon  delivered  them,  as  before  stated,  to  the  defendants,  for 
transportation  to  Xew  York,  where  was  the  plaintiffs'  place  of  busi- 
ness for  selling  the  merchandise  received  by  them  for  sale.  It  does 
not  appear  from  the  findings  of  the  referee  that  the  plaintiffs  had 
made  any  advances  to  the  company,  or  that  the  company  was  at  that 
time  indebted  to  the  plaintiff's. 

There  is  no  dispute  that  the  ownership  of  the  goods  was  in  the 
manufacturing  company,  and  the  facts  found  fall  short  of  showing 
that  the  plaintiffs  had  any  lien  upon  them.  The  taking  of  them  by 
Bliven,  on  the  2d  of  September,  was  not  warranted  by  the  original 
contract,  for  that  contemplated  only  the  consignment  to  the  plain- 
tiffs of  articles  fitted  for  the  market.  Neither  was  it  warranted  by 
the  subsequent  mortgage,  for  there  was  no  indebtedness,  so  far  as 
appears,  on  which  to  rest  a  lien,  by  virtue  of  it.  The  description 
of  the  mortgage  given  by  the  referee,  is  that  it  was  upon  **all  the 
engines,  shafts,  tools,  anvils,  and  fixtures,  stock  manufactured  and 
unmanufactured,  or  in  course  of  manufacture,  and  all  other  goods 
and  chattels  of  the  company  now  or  hereafter  to  be  at  the  works  in 
Sing  Sing  prison,  as  security  for  the  jjayment  to  the  plaintiffs,  on 
demand,  of  all  advances  made,  or  to  he  made,  by  them  to  the  com- 
pany." The  fact  of  the  existence  of  such  a  mortgage  does  not  carry 
with  it  the  presumption  of  an  existing  indebtedness,  as  between  the 
plaintiffs  and  the  comjjany;  tlierefore,  so  far  as  appears,  not  only 
the  ownership,  Ijut  the  riglit  of  possession  belonged  to  the  comi)any. 

The  jgoods,  then,  belonging,  in  fact,  to  tlie  company,  without  any 
ri'.'lit  of  possession  in  the  plaintiffs,  tlie  delivery  of  them  by  the  jus- 
\  .'■<■  at  tlie  C(jinpany's  shop,  from  whicli  they  had  been  taken,  to  a 
])t  Tson  liaving  tlie  actual  possession  of  it  for  tlif  company,  was  a 
delivery  to  the  comjiany. 

The  defendants,  then,  are  entitled  to  take  the  ground  that  the 
good.s  were  taken  from  them  by  valid  legal  process,  and  under  surli 
process  delivered  to  the  true  owner. 

If  it  is  said  that  the  evidence  shows  an  indebtedness  from  tlio 
company  to  the  jilaintifTs,  we  are  not  at  liberty  to  go  intt)  the  evi- 
dence for  tlie  facts,  but  must  take  them  from  the  findings  of  tlie 
referee.     If  we  were  at  liberty  to  examine  the  evidence,  and   Innn 


DELIVERY  BY  CARRIER.  367 

our  own  conclusions  of  fact,  we  should  see  Bliven  present  at,  or 
immediately  after,  the  delivering  up  of  the  goods  at  the  company's 
rooms,  claiming  them  under  plaintiffs'  mortgage,  and  as  agent  of 
the  company,  and  directing  Kooney,  the  superintendent,  who  was  in 
charge  of  the  establishment  for  the  company,  to  keep  them,  and  let 
no  one  take  them  without  his  (Bliven's)  consent,  and  that  Rooney 
thereupon  put  them  back  where  they  belonged,  and  where  tliey  had 
been  the  day  before,  and  that  they  remained  there  about  a  month. 
This,  I  think,  we  should  have  to  consider,  either  as  a  taking  of 
them  into  his  own  possession,  or  as  consenting  to  the  possession  of 
the  company,  either  of  which  would  exonerate  the  defendants. 

But  as  the  case  stands  upon  the  findings  of  the  referee,  I  think  it 
may  well  be  considered  a  case  of  delivery  to  the  true  owners,  through 
the  regular  process  of  the  law;  so  that,  even  if  the  mere  taking  of 
them  out  of  the  defendants'  possession  by  valid  legal  process  would 
not  alone  be  a  defence,  there  can  be  no  doubt  that,  on  this  ground, 
a  good  defence  was  made  to  the  action.  It  is  well  settled  that  the 
right  of  the  true  owner  may  be  set  up  by  the  carrier  as  a  defence 
against  the  shipper  or  bailor,  in  all  cases  where  the  property  has 
been  delivered  up  to  him  by  the  carrier,  whether  voluntarily  on 
demand,  as  in  Bates  w.  Stanton,  1  Duer,  79,  or  taken  by  process  in 
a  suit  instituted  for  that  purpose.  Van  Winkle  v.  U.  S.  Steamship 
Co.,  37  Barb.  122;  Barton  v.  Wilkinson,  18  Vern.  186. 

But  my  associates,  not  passing  upon  the  question  whether  the 
property  was  delivered  to  the  true  owners,  desire  to  put  this  case 
upon  the  doctrine  that  the  common  carrier  is  exonerated  from  his 
obligation  to  his  bailor,  where  the  property  of  the  latter  is  taken 
from  him  by  due  legal  process,  provided  the  bailor  is  promptly 
notified  of  such  taking. 

It  is  to  be  remembered  that  the  plaintiff  Bliven  had  notice  of  the 
taking  of  the  merchandise  from  the  defendants,  with  all  the  circum- 
stances attending  it,  on  the  morning  when  it  occurred;  so  that  the 
case  is  fully  within  the  doctrine  just  referred  to. 

The  judgment  of  the  Supreme  Court  should  therefore  be  affirmed. 

All  affifhi,  on  the  ground  that  when  the  property  is  taken  from 
tlie  carrier  by  legal  process,  and  he  gives  notice  thereof,  he  is 
discharged. 


OHIO   &  MISSISSIPPI     R.   CO.    v.    YOHE. 
51  lud.  181.     1875. 

Downey,  J.     This  was  an  action  by  appellees  against  the  appel- 
lant as  a  common  carrier. 

It  is  alleged  in  the  complaint  that  the  plaintiffs'  consignors,  on 


368  CARRIERS    OF    GOODS. 

the  3cl  of  Xovember,  1S73,  delivered  to  the  appellant,  at  Bridgeport, 
Illinois,  a  quantity  of  wheat,  to  be  carried  to  Vincennes,  Indiana, 
and  delivered  to  the  appellees.  The  appellant  signed  and  delivered 
a  bill  of  lading  evidencing  the  contract,  and  this  is  the  foundation 
of  the  action. 

It  is  alleged  that  .the  comiiany  failed  to  deliver  the  wheat  accord- 
ing to  the  contract,  etc,  A  demurrer  to  the  complaint  was  tiled  and 
overruled. 

The  defendant  moved  the  court,  on  affidavit,  to  stay  the  action 
until  the  determination  of  an  action  of  replevin  in  Illinois,  involv- 
ing the  title  and  ownership  of  the  property,  brought  b}'  one  Johnson. 
This  motion  having  been  overruled,  tlie  defendant  asked  that  John- 
sou  be  made  a  party  to  the  action,  which  request  was  also  refused. 
Thereupon  the  defendant  pleaded,  in  substance,  that  while  tlie 
wheat  was  in  a  car  of  the  company,  at  Bridgeport,  awaiting  the 
coming  of  a  train  and  engine  to  transport  it  to  Vincennes,  in  accord- 
ance with  the  bill  of  lading,  without  any  act,  fault,  or  connivance 
of  the  defendant,  or  of  any  of  her  agents,  servants,  or  employees, 
Johnson  sued  out  of  the  office  of  the  clerk  of  the  Circuit  Court  of 
Lawrence  County,  Illinois,  a  writ  of  replevin,  the  said  Johnson  then 
and  there  claiming  to  be  the  owner  and  entitled  to  the  possession  of 
said  wheat,  and,  by  virtue  of  said  writ,  the  sheriff  of  said  county 
seized  and  took  the  same  out  of  the  possession  of  the  defendant,  and 
delivered  the  same  to  said  Johnson,  according  to  law  and  the  com- 
mand of  said  writ,  and  the  said  Johnson  took  possession  tliereof; 
that  said  action  is  yet  pending,  by  reason  whereof  the  defendant 
was  prevented  from  transporting  said  wheat  to  said  city  of  Vin- 
cennes, and  delivering  the  same  to  the  plaintiffs.  It  is  averred  that 
said  Lawrence  Circuit  Court  had  jurisdiction,  and  certified  copies 
of  the  papers  and  process  in  the  action  of  rejilevin,  etc.,  are  filed 
with  the  answer. 

A  demurrer  to  this  answer,  on  the  ground  that  it  did  not  state 
facts  sufficient  to  constitute  a  defence  to  the  action,  was  filed  by  the 
plaintiffs  and  sustained  by  tlie  court.  The  defendant  declining  to 
answer  further,  there  was  judgment  for  the  i)laintiffs. 

It  is  objected  to  the  complaint  that  it  does  not  show  that  the 
plaintiffs  own  the  wheat,  or  that  they  are  the  consignees  mentioned 
in  the  bill  of  lading.  There  is  no  foundation  for  these  objections. 
The  comjilaint  alleges  that  the  plaintiffs  purchased  the  wlieat  of  the 
consignors;  that  the  consigncjrs  delivcrt'd  the  same  to  the  dcl'cndant; 
and  that  the  defendant  executed  the  bill  of  Lading  to  the  plaintiffs. 

It  is  further  assigned  as  error,  that  tlie  court  improperly  sustained 
the  demurrer  to  the  answer. 

The  question  presented  is  tliis,  Is  a  common  carrier  of  goods 
excust-d  from  liability  for  not  carrying  and  dolivi-ring  the  goods, 
when  they  are,  without  any  act,  fault,  or  connivance  on  his  part, 
seized,  by  virtue  of  legal  process,  and  taken  out  of  his  possession? 


DELIVERY  BY  CAREIER.  369 

It  is  impossible  for  the  carrier  to  deliver  the  goods  to  the  con- 
signee when  they  have  been  seized  by  legal  process  and  taken  out  of 
his  possession.  The  carrier  cannot  stop,  when  goods  are  offered  to 
him  for  carriage,  to  investigate  the  question  as  to  their  ownership. 
Nor  do  we  think  he  is  bound,  when  the  goods  are  so  taken  out  of 
his  possession,  to  follow  them  up,  and  be  at  the  trouble  and  expense 
of  asserting  the  claim  thereto  of  the  party  to  or  for  whom  he  under- 
took to  carry  them.  We  do  not  think  it  material  what  the  form  of 
the  process  may  be.  In  every  case  the  carrier  must  yield  to  the 
authority  of  legal  process. 

After  the  seizure  of  the  goods  by  the  officer,  by  virtue  of  the 
process,  they  are  in  the  custody  of  the  law,  and  the  carrier  cannot 
comply  with  his  contract  without  a  resistance  of  the  process  and  a 
violation  of  law. 

The  right  of  the  sheriff  to  hold  the  goods  involved  questions  which 
could  only  be  determined  by  the  tribunal  which  issued  the  process 
or  some  other  competent  tribunal,  and  the  carrier  had  no  power  to 
decide  them.  If  the  goods  were  wrongfully  seized,  the  plaintiffs 
have  their  remedy  against  the  officer  who  seized  them,  or  against 
the  party  at  whose  instance  it  was  done.  As  between  these  parties, 
the  process  would  be  no  justification  if  the  plaintiffs  were  the  owners 
and  entitled  to  the  possession  of  the  goods. 

It  makes  no  difference,  we  think,  that  the  process  was  issued  by  a 
tribunal  of  a  State  different  from  that  in  which  the  plaintiffs  reside. 
The  rule  must  be  the  same  as  in  a  case  where  the  process  emanates 
from  a  court  in  the  State  of  the  plaintiff's  residence. 

It  cannot  be  denied  that  the  carrier  must  obey  the  laws  of  the 
several  States  in  which  it  follows  its  calling.  The  laws  of  Illinois 
which  give  force  and  effect  to  a  writ  of  replevin  must  be  obeyed.  It 
cannot  say  to  the  sheriff,  who  is  armed  with  a  writ  issued  in  due 
form  of  law,  commanding  him  to  take  the. property,  that  it  has  exe- 
cuted a  bill  of  lading,  and  thereby  agreed  to  transport  the  property 
to  another  State,  and  therefore  he  cannot  have  it.  The  sheriff  would 
have  the  right,  and  it  would  become  his  duty,  to  call  out'the  power 
of  the  county  to  aid  in  serving  his  lawful  process. 

The  carrier  is  deprived  of  the  possession  of  the  propert}^  by  a 
superior  power,  the  power  of  the  State, —  the  vis  major  of.  the  civil 
law.  —  and  in  all  things  as  potent  and  overpowering,  as  far  as  the 
carrier  is  concerned,  as  if  it  were  the  "act  of  God  or  the  public 
enemy."  In  fact,  it  amounts  to  the  same  thing;  the  carrier  is 
equally  powerless  in  the  grasp  of  either. 

In  Redf.  Raihv.,  vol.  2,  p.  158,  the  learned  author  says  that  it  is 
settled  that  the  bailee  may  defend  against  the  claim  of  the  bailor, 
by  showing  that  the  goods  have  been  taken  from  him  by  legal  process. 
And  in  a  note  he  adds,  "If  this  defence  were  not  valid,  it  might 
compel  the  party  to  resist  the  acts  of  a  public  officer  in  the  discharge 
of  his  duty,  which  the  law  will  never  do." 

24 


370  CARRIERS   OF   GOODS. 

lu  Xew  York,  where  property  was  forcibly  seized  by  a  constable, 
on  a  complaint  that  the  property  had  been  stolen,  the  court  said, 
"But  my  associates,  not  passing  upon  the  question  whether  tlie 
property  was  delivered  to  the  true  owners,  desire  to  put  this  case 
upon  the  doctrine  that  the  common  carrier  is  exonerated  from  his 
obligation  to  his  bailor,  where  the  property  of  the  latter  is  taken 
from  him  by  due  legal  process,  provided  the  bailor  is  promptly 
notified  of  such  taking.  .  .  .  The  judgment  of  the  Supreme  Court 
should  therefore  be  affirmed.  All  affirm,  on  the  ground  that  when 
the  property  is  taken  from  the  carrier  by  legal  process,  and  he  gives 
notice  thereof,  he  is  discharged."  Bliven  v.  Hudson  Eiver  K.  R. 
Co.,  36  X.  Y.  403  [364J. 

In  this  same  case,  in  the  Supreme  Court,  it  was  held  that  "the 
bailee  must  assure  himself,  and  show  the  court  that  the  proceedings 
are  regular  and  valid,  but  he  is  not  bound  to  litigate  for  his  bailor, 
or  to  show  that  the  judgment  or  decision  of  the  tribunal  issuing  the 
process,  or  seizing  the  goods,  was  correct  in  law  or  in  fact.  This  is 
the  rule  as  to  bailees  in  general,  and  it  includes  the  case  of  common 
carriers."     Bliven  v.  Hudson  Kiver  R.  R.  Co.,  35  Barb.  191. 

In  a  case  where  goods  were  seized  on  attachment,  the  court  held, 
"  If  goods  are  taken  from  a  bailee  or  carrier  by  authority  of  law,  in 
any  case  coming  within  these  exceptions,  there  is  no  doubt  that  it 
is  a  good  defence  to  an  action  by  the  bailor  or  shipper,  for  a  non- 
deliverv."  Van  Winkle  v.  United  States  Mail  Steamship  Co.,  37 
Barb.  122. 

In  Vermont,  where  goods  in  the  hands  of  a  wharfinger  were  seized 
under  legal  process,  the  court  held  that  if  they  are  taken  from  the 
wharfinger  or  warehouseman  by  lawful  process,  the  wharfinger  or 
warehouseman  can  protect  himself  in  a  suit  brought  against  him  by 
the  owner.     Burton  v.  "Wilkinson,  18  Vt.  186. 

In  the  Supreme  Court  of  the  United  States,  where  goods  in  the 
hands  of  a  carrier  had  been  attaolu-d  by  a  third  i)arty,  in  a  suit 
brought  by  the  consignees  on  a  bill  of  lading,  Mr.  .histicc  Nelson, 
in  delivering  the  opinion  of  the  court,  said:  — 

"After  the  seizure  of  the  goods  by  the  slicriff,  under  the  attach- 
ment, they  wort'  in  tlie  custody  of  the  law,  and  the  di-fendant  could 
not  comply  with  tlie  demand  of  the  plaintiffs  witliout  a  breach  of 
it,  even  admitting  the  goods  to  have  been,  at  the  time,  in  his  actual 
po.ssession.  The  case,  however,  shows  that  they  were  in  the  pos- 
session of  the  .sheriff's  f)fficer  or  agent,  and  continued  there  until 
disposed  of  under  the  jiidgment  ujion  the  attachment.  It  is  true 
that  these  goods  h:id  l)een  didiverrd  to  the  deffudant,  as  carriers,  by 
the  plaintiffs,  to  be  conveyed  for  them  to  the  place  of  destination, 
and  were  seized  under  an  attachment  against  third  i)ersons;  but  this 
cirfumstance  did  not  impair  the  legal  effect  of  the  seizure  or  custody 
of  tho  goods  under  it,  so  as  to  justify  the  defendant  in  taking  them 
out  of  the  hand.s  of  the  slioritl.     The  right  of  tiie  sherilT  to  hold 


DELIVERY  BY  CARRIER.  371 

them  was  a  question  of  law,  to  be  determined  by  the  proper  legal 
proceedings,  and  not  at  the  will  of  the  defendant  nor  that  of  the 
plaintiffs.  The  law  on  this  subject  is  well  settled,  as  may  be  seen 
on  a  reference  to  the  cases  collected  in  sections  453,  290,  350,  of 
Drake  on  Attachment,  second  edition."  Stiles  v.  Davis,  1  Black, 
101  [363]. 

The  above  case  is  the  same  as  the  case  at  bar,  with  the  single 
exception  that  in  Stiles  v.  Davis  the  goods  were  seized  under  an 
attachment,  while  in  this  case  they  were  seized  under  a  writ  of 
replevin. 

There  is  a  defect,  however,  in  the  answer,  which  justified  the  Cir- 
cuit Court  in  holding  it  bad,  and  that  is  the  want  of  an  averment 
that  the  defendant  gave  immediate  notice  to  the  plaintiffs  that  the 
goods  had  been  seized  and  taken  out  of  its  possession.  That  the 
carrier  should  do  this  seems  to  be  a  necessary  and  reasonable  quali- 
fication of  the  rule.  The  rule  is  laid  down  with  this  qualification 
in  Bliven  v.  The  Hudson  Kiver  R.  R.  Co.,  supra.  The  only  aver- 
ment as  to  notice  in  the  answer  is  this:  "And  the  defendant  further 
avers  that  said  plaintiffs  had  notice  before  the  commencement  of 
this  suit,  that  said  action  of  replevin  was  pending,"  etc.  The 
bill  of  lading  bears  date  November  3d,  1873.  The  writ  of  replevin 
bears  date  November  5th,  1873.  The  wheat  was  taken  and  delivered 
to  Johnson  on  the  6th  day  of  November,  1873.  The  record  does  not 
show  when  this  action  was  commenced.  The  first  date  given  is  that 
of  the  filing  of  the  amended  complaint,  February  7th,  1874.  There 
is  nothing  from  which  we  can  find  that  proper  diligence  was  used  by 
the  carrier  in  giving  notice  of  the  seizure  of  the  goods. 

It  may  be  repeated  that  the  wheat  was  received  by  the  defendant 
on  the  3d  day  of  November,  1873,  and  was  not  seized  until  the  6th. 
It  is  probable  that  a  satisfactory  excuse  or  reason  should  be  alleged 
why  the  wheat  was  not  moved  before  the  seizure.  The  answer 
admits  the  receipt  of  the  wheat  and  the  execution  of  the  bill  of 
lading,  on  the  3d  of  November,  and  then  alleges,  "and  thereupon 
said  wheat  was  loaded  into  a  car  of  defendant  then  standing  upon 
her  side  track,  at  said  town  of  Bridgeport,  and  while  said  wheat  was 
in  said  car,  and  so  upon  said  track,  and  awaiting  the  arrival  of  a 
train  and  engine  to  transport  the  same  to  the  city  of  Yincennes  afore- 
said, in  accordance  with  the  terms  of  said  bill  of  lading,  and  with- 
out the  act,  fault,  or  connivance  of  the  defendants  or  of  any  of  her 
agents,  servants,  or  employees,  one  Benjamin  F.  Johnson  sued  out," 
etc.  It  is  very  questionable  whether  this  shows  proper  diligence  on 
the  part  of  the  carrier.  We  need  not,  however,  decide  this  ques- 
tion. Clearly,  we  think,  the  carrier  cannot  make  use  of  the  fact 
that  the  property  has  been  seized  by  legal  process  to  shield  himself 
from  liability  for  his  own  negligence,  or  to  justify  any  improper 
confederation  with  the  party  or  officer  seizing  the  goods. 

The  rulings  of  the  court  on  the  motions  to  stay  the  proceedings  in 


372  CARRIERS   OF   GOODS. 

the  action,  and  to  cause  Johnson  to  be  made  a  party  to  the  action, 
were  proper,  for  the  reasons  stated  in  determining  the  validity  of 
the  answer. 

A  question  is  made  concerning  the  publication  of  a  deposition 
taken  by  the  plaintiffs,  -which,  it  is  contended,  was  not  jn-operly 
directed  on  the  envelope.  But  as  the  deposition  was  not  used  on 
the  trial,  the  defendant  could  not  have  been  injured  by  this  ruling. 

The  judgment  below  is  affirmed,  with  costs. 


EDWARDS   V.    WHITE   LINE   TRANSIT   CO. 

101  Mass.  159.     1S70. 

Contract  against  common  carriers  for  breach  of  their  agreement 
to  carry  safely  from  Cincinnati  to  Providence,  and  deliver  to  the 
plaintiffs  a  car-load  of  miildlings.  Another  count  on  a  contract  to 
carry  corn  is  now  immaterial. 

Wells,  J.  The  only  exception  relied  on  here  is  that  which  relates 
to  the  car-load  of  '*  middlings  "  taken  from  the  carriers  by  attach- 
ment, and  sold  on  execution,  in  a  suit  brought  in  New  York  against 
the  plaintiffs'  consignors,  David  Schwartz  &  Company,  by  ])arties 
from  whom  they  had  previously  obtained  the  property. 

The  court  held,  and  we  think  correctly,  that  there  was  a  sufficient 
transfer  and  delivery  from  David  Schwartz  &  Company  to  vest  the 
title  in  the  plaintiffs;  that  the  suit  against  David  Scliwartz  &  Com- 
pany, the  judgment  therein,  and  levy  upon  the  projierty,  were  suffi- 
cient to  show  a  waiver  of  the  condition  of  the  sale  by  which  David 
Schwartz  &  Company  obtained  possession  of  it  from  the  former 
owners.  Aside  from  that  consideration,  any  defect  in  the  title  of 
the  bailor  could  not  be  set  uj*  against  him  or  against  his  consignee, 
by  the  bailee,  unless  the  superior  title  had  been  asserted  again.st  the 
bailee.  In  this  case  the  property  was  not  taken  from  the  carrier 
))y  virtue,  or  upon  the  assertion,  of  any  superior  title  in  the  former 
owners.  It  was  taken  as  the  ])roperty  of  David  Seliwartz  &  Com- 
pany, by  means  of  legal  process  against  them.  For  all  purjioses  (»f 
this  decision,  therefore,  we  may  lay  out  of  view  the  claim  that 
Schwartz  &  Company  had  not  acrpiired  title  and  right  to  transfer 
the  property,  and  regard  the  jtlaintiffs  as  having  become  the  absolute 
owners  of  it  before  the  attachment. 

Tlu'  judge  who  tried  the  case  decided,  that,  "as  uikUt  tlic  attacli- 
ments  the  goods  were  taken  out  of  the  possession  of  the  defendants '' 
without  collusion,  negligence,  or  fraud  on  their  part,  "the  perform- 
ance of  their  contract  to  carry  and  deliver  the  goods  was  tlius  ren- 
dered  impossible   by   the   intervention   of  a  siipt-rior  jinwcr.   wliich 


DELIVERY   BY   CARRIER.  373 

necessarily  excused  them  from  such  performance;  that,  upon  the 
attachment  by  the  sheriff  of  the  goods,  the  same  came  into  the  cus- 
tody of  the  law;  whether  they  were  the  property  of  the  plaintiffs 
or  of  David  Schwartz  &  Company,  they  were  in  the  custody  of  the 
law  for  adjudication ;  "  and  that  the  defendants  could  not  be  held 
liable  for  not  transporting  and  delivering  goods  so  taken  from  them. 
This  ruling  is  in  accordance  with  what  might  seem,  at  first  sight, 
to  be  the  decision  of  the  Supreme  Court  of  the  United  States  in 
Stiles  V.  Davis,  1  Black,  101  [363].    The  defendants'  counsel  insists 
that  to  hold  otherwise  would  be  in  direct  conflict  with  that  decision. 
We  do  not  so  regard  the  matter.     In  Stiles  v.  Davis  the  action 
was  not  brought  upon  the  contract  of  carriage ;  nor  for  a  violation , 
by  the  defendant,  of  his  obligations  as  carrier.     It  was  an  action  of 
trover  for  the  conversion  of  the  goods.     The  failure  to  deliver  the 
goods  at  another  place  than  that  of  their  destination,  upon  a  demand 
made  there,  with  no  denial  of  the  plaintiffs'  right,  but  merely  for 
the  reason  that  they  were  detained  under  attachment  by  legal  process, 
would  not  be  a  conversion  of  the  property.     The  case  decides  noth- 
ing more.     The  question,  whether  the  same  facts  would  constitute 
a  good  defence  to  a  suit  against  the  defendant  for  breach  of  his  con- 
tract or  obligation  as  common  carrier,  was  not  decided,  and  was  not 
raised  by  the  form  of  the  action.     The  opinion,  by  Mr.  Justice 
Nelson,  does,  indeed,  assign,  as  a  reason  for  the  decision,  that  the 
goods  "  were  in  the  custody  of  the  law,  and  the  defendant  could  not 
comply  with  the  demand  of  the  plaintiffs  without  a  breach  of  it;" 
that  "the  right  of  the  sheriff  to  hold  them  was  a  question  of  law,  to 
be  determined  by  the  proper  legal  proceedings,  and  not  at  the  will 
of  the  defendant,  nor  that  of  the  plaintiffs."     But  this  language 
must  be   interpreted  with  reference  to  the  precise  question  then 
under  consideration.     In  one  sense,  the  property  was  in  the  custody 
of  the  law ;  so  far,  at  least,  that  the  surrender  of  its  possession  to 
the  officer  claiming  to  attach  it  upon  legal  process  was  not  tortious 
on  the  part  of  the  carrier,  so  as  to  subject  him  to  the  charge  of  con- 
verting it  to  his  own  use.     But  that  custody  was  of  no  effect  against 
any  one  having  an  interest  in  the  property,  not  made  party  to  the 
suit  in  which  the  process  issued.     It  was  not  in  the  custody  of  the 
law  in  the  sense  in  which  property  that  is  the  subject  of  proceedings 
i/i  rem  is  in  the  custody  of  the  law,  or  property  actually  belonging 
to  the  party  against  whom  the  suit  is  brought.     In  personal  actions, 
the  attachment  of  property  of  another  than  a  defendant  in  the  suit 
is  a  trespass;  and,  as  the  true  owner,  the  property  is  not  regarded 
as  in  the  custody  of  the  law.     It  may  be  reclaimed  by  replevin ; 
except  where  the  replevin  would  bring  State  and  federal  authorities 
into  conflict,  as  in  Howe  v.  Freeman,  14  Gray,  566;   s.  c.  24  How. 
450.     The  officer  may  always  be  held  liable  as  a  trespasser  for  its 
full  value,  notAvithstanding  the  pendency,  and  without  reference  to 
the  suit  in  which  the  attachment  was  made.     The  liability  is  ex- 


374  CARRIERS   OF   GOODS. 

pressly  recognized  in  the  closing  paragraph  of  the  opinion  of  Mr. 
Justice  Nelson.  See  also  Buck  v.  Colbath,  3  Wallace,  334.  It 
does  not  appear,  from  the  report,  how  far,  if  at  all,  the  decision  in 
Stiles  V.  Davis  was  affected  by  the  fact  that  the  carrier  was  made  a 
party  to  the  proceedings,  as  garnishee. 

The  present  suit,  is  brought  against  the  defendants  upon  their 
contract  as  carriers.  Assuming  that  the  title  to  the  proi)erty  had 
vested  in  the  plaintiffs,  according  to  the  finding  of  the  facts  at  the 
trial,  the  attachment  by  the  officer,  in  a  suit  against  David  Schwartz 
&  Company,  was  a  mere  trespass.  As  against  tlie  plaintiffs,  it  was 
of  no  more  validity  than  a  trespass  by  any  other  unauthorized  pro- 
ceeding,  or  by  an  unorticial  person.  The  earner  is  not  relieved  from 
the  fulfilment  of  his  contract,  or  his  liability  as  carrier,  by  the  inter- 
vention of  such  an  act  of  disposition,  any  more  than  he  is  by 
destruction  from  fire,  or  loss  by  theft,  robbery,  or  unavoidable  acci- 
dent. In  neither  case  is  he  liable  in  trover  for  conversion  of  the 
property;  but  he  is  liable  on  his  contract,  or  upon  his  obligations 
as  common  carrier.  The  owner  may,  it  is  true,  maintain  trover 
against  the  officer  who  took  the  projjert}-  from  the  carrier;  but  lie 
is  not  obliged  to  resort  to  him  for  his  remedy.  He  may  proceed 
directly  against  the  carrier  upon  his  contract,  and  leave  the  carrier 
to  pursue  the  property  in  the  hands  of  those  who  have  wrongfully 
taken  it  from  him. 

It  will  not  be  understood,  of  course,  that  these  considerations 
apply  to  the  case  of  such  an  attachment  in  a  suit  against  the  owner 
of  the  property.  If  the  present  plaintiffs  had  been  defendants  in 
the  suit  in  which  the  attachment  was  made,  the  case  would  have 
stood  differently.  In  that  state  of  facts,  the  property  would  have 
been  strictly  in  the  custody  of  the  law,  so  far  as  these  parties  were 
concerned,  and  the  intervention  of  tliose  legal  proceedings  would 
have  deprived  the  plaintiffs  of  the  right  to  require  the  delivery  of 
the  property  to  themselves  until  released  from  that  custody. 

But  it  is  not  so  upon  the  state  of  facts  shown  by  this  report;  and 
the  ruling  of  the  court  against  the  plaintiffs  u]K)n  this  branch  of  the 
case  was  wrong.  They  are  therefore  entitled  to  a  new  trial  upon  tlie 
counts  of  their  declaration  relating  to  the  car-load  of  "middlings;" 
and  for  that  ])urpose  the  Excvjttions  arc  snstuhivd. 


KIFF   r.  OLD   riiljiNV    .^    NKWl'oKT    K.  CO. 

117  M:i8s.  091.     1)S7.J. 

Tort,  with  a  count  in  contract,  against  the  defendant  as  a  rnn>. 
mon  carrier,  for  a  failure  to  deliver  certain  property  described  in 
the  'leclaration  as  spirituous  liquors,  and  alleged  to  be  of  the  value 
of  §713. 


DELIVERY  BY  CARRIER.  375 

At  the  trial  in  the  Superior  Court,  before  Bacox,  J.,  the  plaintiff 
offered  evidence  tending  to  show  that  the  property  was  his,  was 
shipped  by  him,  and  came  into  the  possession  of  the  defendant  as 
a  common  carrier,  and  was  so  in  its  possession  at  Boston  in  due 
course  of  transportation  to  Belfast,  Maine ;  that  the  defendant  failed 
to  deliver  it  to  him  at  Boston  on  demand. 

The  defendant  then  offered  evidence  tending  to  show  that  on  the 
day  the  goods  were  received  by  it  at  Boston,  they  were  taken  from 
its  possession  by  Eobert  S.  Carroll,  a  duly  appointed  and  qualilied 
constable  of  the  city  of  Boston,  without  fraud  or  collusion  on  its 
part,  against  its  will,  and  with  no  knowledge  that  they  were 
spirituous  liquors,  on  a  legal  and  valid  writ  of  attachment,  having 
an  ad  damnum  of  three  hundred  dollars,  against  the  plaintiff,  in  the 
case  at  bar  and  in  favor  of  William  F.  Nye. 

The  defendant  then  requested  the  judge  to  rule  that  if  the  goods 
were  taken  from  its  possession  on  a  legal  and  valid  writ  of  attach- 
ment against  the  plaintiff,  by  a  proper  officer,  without  fraud  or  col- 
lusion on  its  part,  against  its  will,  and  with  no  knowledge  that  they 
were  spirituous  liquors,  it  was  not  liable  for  a  failure  to  deliver  the 
goods  to  the  plaintiff.  The  judge  declined  so  to  rule,  and  ruled 
that  the  goods  were  not  liable  to  be  taken  on  a  writ  of  attachment 
against  the  owners ;  that  the  facts  offered  to  be  shown  by  the  defend- 
ant constituted  no  defence  to  this  action,  and  that  the  only  question 
for  the  jury  was  the  value  of  the  property  at  the  time  the  defendant 
failed  to  deliver  it  to  the  plaintiff,  to  which  the  defendant  alleged 
exceptions. 

The  judge,  after  verdict,  reported  the  case  for  the  consideration 
of  this  court;  if  the  rulings  for  the  plaintiff  were  sustained,  judg- 
ment to  be  entered  on  the  verdict;  if  not,  the  verdict  to  be  set  aside. 

Gray,  C.  J.  In  Tngalls  v.  Baker,  13  Allen,  449,  it  was  adjudged 
by  this  court,  upon  full  consideration  of  the  provisions  of  the 
General  Statutes  and  of  the  previous  legislation  of  the  Common- 
wealth upon  the  subject  now  before  us,  that  the  Gen.  Sts.  c.  ^Q, 
§  28,  prohibiting  the  sale  of  intoxicating  liquors ,  directly  or  in- 
directly, except  as  authorized  in  that  chapter,  and  containing  no 
exception  of  sales  by  officers  under  legal  process,  manifested  the 
intention  of  the  legislature  that  intoxicating  liquors  should  not  be 
sold  on  execution,  and  therefore  such  liquors  could  not  be  lawfully 
attached  on  mesne  process. 

In  1868,  the  legislature  passed  a  new  act  to  regulate  the  sale  of 
intoxicating  liquors,  which  provided  that  "nothing  herein  contained 
shall  apply  to  sales  made  by  sheriffs,  deputy  sheriffs,  coroners,  con- 
stables, collectors  of  taxes,  executors,  administrators,  guardians, 
assignees  in  insolvency  or  bankruptcy,  or  any  other  person  required 
by  law  to  sell  personal  property;  "  and  that  "the  eighty-sixth  chap- 
ter of  the  General  Statutes,  and  all  acts  and  parts  of  acts  inconsis- 
tent herewith,  are  hereby  repealed."     St,  1808,  c.  141,  §§  1,  26. 


376  CARRIERS    OF   GOODS. 

But  in  1869,  the  legislature  again  revised  the  whole  law  upon  the 
subject,  re-euacted  the  provision  of  the  Gen.  Sts.  e.  80.  §  28.  and 
expressly  repealed  the  previous  statutes,  including  the  St.  of  1868, 
e.  141.     St.  1869,  c.  415,  §§  30,  65. 

These  statutes  of  1868  and  1869  were  passed  after,  and  it  must 
be  presumed  with  fiill  knowledge  of,  the  decision  in  Ingalls  r.  Baker. 
The  conclusion  is  inevitable  that  the  legislature,  when  they  re- 
pealed the  St.  of  1868,  c.  141,  and  re-enacted  the  provision  of  the 
Gen.  Sts.  c.  S6,  §  28,  intended  that  the  exception  introduced  by  the 
St.  of  1868,  and  which  had  been  held  by  this  court  not  to  exist  under 
the  General  Statutes,  should  not  exist  for  the  future,  and  that  tlie 
law  of  the  Commonwealth  should  be  as  declared  in  Ingalls  v.  15aker. 
Low  V.  Blanchard,  116  Mass.  272,  274. 

It  follows  that  the  plaintiff's  liquors  were  not  liable  to  attach- 
ment, the  attachment  of  them  was  illegal,  and  the  officer  who 
attached  them  a  trespasser.  Bean  v.  Hubbard,  4  Cush.  85;  Deyo 
V.  Jennison,  K)  Allen,  410,  413. 

Every  common  carrier  of  goods  being  in  tlie  nature  of  an  insurer, 
liable  —  upon  grounds  of  public  policy,  and  to  guard  against  the 
possibility  of  fraud  and  collusion  on  his  part — for  all  losses,  even 
by  accident,  trespass,  theft,  robbery,  or  any  kind  of  unlawful  tak- 
ing, and  excepting  only  those  arising  by  act  of  God  or  of  public 
enemies,  it  also  follows  that  it  was  rightly  ruled  at  the  trial  that 
the  facts  offered  to  be  shown  by  the  defendant  corporation  constituted 
n<j  defence  to  this  action  against  it  as  a  common  carrier.  2  Kent 
Com.  (12th  ed.)  597;  Coggs  v.  Bernard,  2  Ld.  Kayni.  909,  918; 
s.  <-.  3  Salk.  11;  Edwards  r.  White  Lino  Transit  Co.,  104  Mass. 
159  [372];  Adams  v.  Scott,  id.  164,  166  [376]. 

Judf/meiit  on  the  verdict  for  thejjlai7itiff. 


ADAMS    V.    SCOTT   &    Tku.stee.s. 
104  Muss.  Kil.     1>^70. 

Contract  on  a  promi.ssory  note.  The  principal  defendant,  whose 
residence  was  at  Norwich  in  Connecticut,  appeared,  answered,  and 
ri. -1  a  declaration  in   set-off.     The  parties  summoned  as   trustees 

'  !'•  an  nxpress  oom])any.  In  the  Suporior  Court,  "upon  motion  to 
charge  them  as  trustees,  it  appeared  that  they  ^^  common  carriers 
had  taken  a  package  securely  sealed  uj),  containing  money,  and 
directed  to  a  person  of  tlie  same  name  as  the  defendant  at  Norwich, 
<  tit.     The  i)laintiff  filed  allogations  tliat  tlie  jifr.son  towliom 

;  igj' was  addressed  was  in  fart  the  principal  defeiidant.  and 

that  the  i»ackage  was  his  property  when  intrusted  to  the  carriers 


DELIVERY   BY   CAKKIER.  377 

and  also  when  process  was  served.  Issue  l^eing  joined,  the  facts 
were  found  as  alleged  by  the  plaintiff.  While  the  package  was  thus 
in  transit  and  in  the  custody  of  the  trustees  in  Boston,  this  process 
was  served  upon  them."  Lord,  J.,  ordered  the  trustees  to  be  charged, 
and  they  alleged  exceptions. 

MoRTOx,  J.  The  answers  of  the  trustees  disclose  that  they  have 
in  their  possession  a  package  supposed  to  contain  money,  sealed  up, 
and  directed  to  a  person  of  the  same  name  as  the  defendant  at 
Norwich,  Connecticut.  Upon  the  trial  of  an  issue  upon  additional 
allegations  filed  by  the  plaintiff,  it  was  proved  that  the  person  to 
whom  the  package  was  addressed  was  in  fact  the  defendant;  that 
the  package  contained  money;  and  that  it  was  the  property  of  the 
defendant  when  it  was  intrusted  to  the  trustees  and  when  the  process 
was  served  upon  them.  The  case  thus  differs  from  Bottom  v.  Clarke, 
7  Cush.  487,  in  which  the  trustees  were  discharged  because  it  did 
not  appear  that  the  locked  trunk  in  their  hands  contained  any  goods, 
effects,  or  credits  of  the  principal  defendant  which  were  attachable. 
In  the  case  at  bar,  the  sealed  package  is  proved  to  contain  money 
belonging  to  the  defendant,  and  thus  the  trustees  are  brought  within 
the  provisions  of  the  Gen.  Sts.  c.  142,  §  21,  "having  goods,  effects, 
or  credits  of  the  defendant  intrusted  or  deposited  in  their  hands  or 
possession."  They  are  therefore  chargeable  as  trustees,  unless  the 
fact  that  the  money  was  in  their  hands  as  common  carriers,  in 
transitu,  exonerates  them. 

There  is  no  reason  why  a  common  carrier  should  not  be  liable  to 
the  trustee  process,  in  the  same  manner  as  other  bailees  are,  unless 
the  nature  of  his  contract  is  such  that  a  judgment  charging  him  as 
trustee  would  not  protect  him  against  a  claim  of  the  defendant  for 
a  non-delivery  of  the  goods  at  their  place  of  destination.  But  we 
are  of  opinion  that  such  judgment  would  be  a  sufficient  excuse  to  the 
trustee  for  a  failure  to  deliver  according  to  his  contract.  The  doc- 
trine of  the  common  law,  that  a  carrier  is  responsible  for  all  losses, 
except  those  occurring  by  the  act  of  God  or  a  public  enemy,  has  no 
application  to  a  case  like  the  present.  There  has  been  no  loss,  but 
the  defendant's  property  has  been  sequestrated  by  the  law,  to  be 
applied  to  his  use  and  benefit.  Every  man  holds  his  property  sub- 
ject to  be  attached,  and  whenever  property  is  attached  in  a  suit 
against  the  owner,  and  taken  into  the  custody  of  the  law,  it  excuses 
the  person  having  possession  of  it  from  performing  his  promise, 
express  or  implied,  to  deliver  it  to  the  owner.  The  law  substitutes 
the  delivery  to  its  officers  for  a  performance  of  his  contract. 

It  is  not  a  sound  argument,  therefore,  to  urge  that  these  trustees 
should  be  discharged  because  otherwise  they  cannot  perform  their 
contract  to  deliver  at  Norwich.  The  necessary  effect  of  every  trus- 
tee process  is,  by  diverting  the  property  to  the  payment  of  the  cred- 
itor, to  prevent  the  trustee  from  strictly  performing  his  contract  with 
the  defendant. 


378  CAEKIEKS   OF   GOODS. 

In  the  case  at  bar,  the  Superior  Court  has  jurisdiction  over  the 
subject-matter  and  the  parties,  the  defendant  having  appeared.  A 
judgment  against  him  and  against  the  trustees  will  be  valid  and 
binding,  and  by  the  provisions  of  our  statutes  will  acquit  and  dis- 
charge the  trustees  from  all  demands  by  the  defendant  for  all  goods, 
effects,  or  credits  paid  or  delivered  by  them  by  force  of  sucli  judg- 
ment. Gen.  Sts.  c.  142,  §  37.  We  may  reasonably  presume  that 
the  same  effect  would  be  given  to  it  in  every  other  jurisdiction. 
"Whipple  V.  Bobbins,  97  Mass.  107. 

This  case  is  clearly  distinguishable  from  Edwards  v.  "White  Line 
Transit  Co.,  ante,  151)  [372].  In  that  case,  the  property-  of  the  plain- 
tiff, while  in  the  hands  of  a  common  carrier,  in  transifu,  was  attached 
upon  a  writ  against  a  third  person.  The  attachment  was  clearly 
illegal,  and  the  plaintiff  thereby  lost  his  property.  The  officer, 
though  acting  under  color  of  legal  process,  was  a  mere  trespasser; 
and  the  defendants  were  liable,  under  the  rule  of  the  common  law, 
in  the  same  manner  as  if  they  had  allowed  any  other  trespasser  to 
take  the  goods  out  of  their  custody. 

The  case  of  Clark  v.  Brewer,  6  Gray,  320,  cited  by  tlie  trustees, 
is  clearly  distinguishable  from  the  case  at  bar.  In  Clark  r.  Brewer 
the  alleged  trustee  had  no  goods  or  effects  of  the  defendant  in  his 
hands.  He  had  contracted  to  deliver  to  the  defendant  in  New  York 
goods  to  a  fixed  amount  at  the  market  price;  which  goods  would 
become  the  property  of  the  defendant  when  delivered,  and  not 
before.  The  plaintiff  sought  to  charge  him  as  trustee  by  reason  of 
this  contract.  But  the  court  held  that,  as  the  provisions  of  the 
statute  charging  as  trustee  one  who  is  bound  by  contract  to  deliver 
specific  goods  to  the  defendant  at  a  certain  time  and  place  were  not 
applicable  to  contracts  for  the  delivery  of  goods  at  any  place  out  of 
tlie  State,  the  alleged  trustee  could  not  be  charged.  Then-  was  no 
provision  of  the  statute  by  which  he  was  chargeable. 

The  case  at  bar  is  different.  The  trustees  have  in  their  hands 
goods  belonging  to  the  defendant;  they  are  not  chargeable  by  reason 
of  any  contract  to  deliver  goods  to  the  defendant,  but  because  they 
liave  in  tli«-ir  jtossession  his  goods  and  effects  and  are  thus  l)rouglit 
directly  within  the  provisions  of  the  twenty-first  section  of  chapter 
142  of  the  General  Statutes.  The  fifty-fourth  section  of  the  same 
chapter  does  not  apply  to  this  case;  but  it  comes  within  the  pro- 
vision contained  in  the  fifty-second  section,  that,  when  a  jicrson  is 
charged  as  trustee  by  reason  of  goods  of  the  d('feiid;int  which  lie 
holds,  he  shall  deliver  the  same  to  the  olhccr  who  liolds  the 
execution. 

For  the  reasons  wc  have  stated,  we  are  of  oj)inion  tliat  the  trustees 
must  be  charged. 

Kxccj>t io n s  nvcrru led. 


DELIVERY   BY   CARRIER.  379 


MONTKOSE    PICKLE  CO.   v.   DODSOX    &   HILLS 
MANUF.    CO. 

76  Iowa,  172.     1888. 

This  is  an  action  upon  an  account  for  merchandise  sold  and 
delivered  by  the  plaintiff  to  the  Dodson  &  Hills  Manufacturing 
Company,  defendant.  An  attachment  was  issued  upon  the  ground 
that  the  defendant  was  a  non-resident  of  the  State ;  and  the  Diamond 
Jo  Line  of  steamers,  a  corporation,  was  garnished  in  the  action, 
upon  the  claim  or  supposition  that  it  had  property  in  its  possession 
belonging  to  the  defendant,  which  was  liable  to  attachment.  The 
garnishee  answered,  denying  that  it  had  any  property  in  its  custody 
subject  to  the  writ.  Issue  was  taken  upon  the  answer  of  the  gar- 
nishee, and  a  trial  was  had  by  the  court,  and  a  judgment  was  ren- 
dered discharging  the  garnishee.     Plaintiff  appeals. 

EoTHROCK,  J.  At  the  time  the  action  was  commenced  the  plain- 
tiff was  a  resident  of  this  State.  The  defendant  was  a  non-resident 
of  the  State,  and  a  resident  of  the  State  of  Missouri.  Service  of 
the  original  notice  and  of  the  notice  of  garnishment  was  made  per- 
sonally on  the  defendant  in  St.  Louis,  in  that  State.  The  defendant 
made  no  appearance  in  the  action,  and  a  default  was  entered  against 
it,  and  what  appears  to  have  been  a  personal  judgment  was  rendered 
upon  the  default.  It  is  not  important  to  determine  the  effect  of  the 
judgment  rendered  upon  service  of  the  original  notice  out  of  the 
State.  It  is  not  a  material  question  in  the  case.  The  Diamond  Jo 
Line  of  steamers  is  an  Iowa  corporation,  with  its  principal  place  of 
business  at  the  city  of  Dubuque.  It  is  a  common  carrier  of  freight 
and  passengers  upon  steamers  to  and  from  all  points  on  the  Mis- 
sissippi River  between  St.  Paul,  Minn.,  and  St.  Louis,  Mo.  On  the 
thirtieth  day  of  September,  1887,  said  steamer  company  received  on 
board  of  one  of  its  boats,  at  Alexandria,  Mo.,  some  five  hundred  or 
six  hundred  barrels  of  pickles,  for  transportation  to  St.  Louis.  The 
property  was  shipped  by  the  Dodson  &  Hills  Manufacturing  Com- 
pany, at  Alexandria,  to  the  Dodson  &  Hills  Manufacturing  Company 
at  St.  Louis.  The  pickles  were  loaded  on  the  steamer  on  the  fore- 
noon of  that  day.  On  the  same  day,  and  while  the  steamer,  with 
the  property  in  dispute  on  board,  was  on  its  way  down  the  river  to 
its  destination,  the  garnishment  notice  was  served  on  the  steamer 
company  at  Dubuque,  and  on  one  of  its  agents  at  Keokuk. 

The  question  to  be  determined  is  whether  the  property  was  liable 
to  attachment  by  garnishment.  The  Superior  Court  held  that  the 
garnishee  was  not  liable,  because  the  property  was  not  within  the 
jurisdiction  of  that  court;  that  the  defendant's  title  thereto  was  not 
doubtful;  that  it  was  capable  of  manual  delivery,  and,  if  within  the 


380  CARRIERS   OF   GOODS. 

jurisdiction  of  the  court,  it  should  have  been  levied  upon  and  taken 
into  custody  by  the  officer  executing  the  writ  of  attachment;  and 
that  it  was  not  the  subject  of  garnishment.     This  is  the  sole  ques- 
tion presented  to  this  court  for  determination.     The  ground  of  the 
attachment  was  that  the  defendant  was  a  nun-resident  of  this  State. 
An  attachment  issued  upon  this  ground  avails  nothing,  unless  the 
defendant  has  property  or  debts  owing  to  him  within  this   State. 
"Without  such  property  or  debts,  there  could  be  no  service  of  the 
attachment,  either  by  actual  levy,  or  by  the  process  of  garnishment. 
It  is  not  claimed  by  appellant  that  any  jurisdiction  of  the  property 
could  be  obtained  by  seizing  it  outside  the  State.     The  contention 
is  that,  as  the  garnishee  is  a  resident  of  the  State,  the  situs  or  loca- 
tion of  the  property  in  question  must  be  held  to  be  in  this  State. 
This  rule  has  been  held  to  apply  to  debts  owing  bj'  the  garnishee 
to  the  defendant.     Mooney  v.  Union  Tac.  Ky.  Co.,  GO  Iowa,  34G. 
That  was  a  case  of  garnishment  of  the  wages  of  a  railroad  employee. 
The  garnishee  was  held  to  be  a  resident  of  this  State,  and  there  was 
no  contract  that  the  wages  due   were  to  be   paid   in  the   State  of 
Nebraska,   where  the  emplo3'ee  resided  and  the  garnishee  had  its 
principal  place  of  business.    It  appears   to  us  that   the  right   to 
garnish  the  steamer  company,  and  hold  it  for  the  value  of  the  prop- 
erty  in   question  in   this  case,  presents  a  very  different  question. 
The   law  of   attachment  in  this   State  does   not   contemplate    tliat 
property  not  actually  within  the  State,  but  located  in  another  State, 
shall  be  the  subject  of  garnishment.     AVe  need  not  cite  the  various 
sections  of  the  statute  upon  the  subject  of  attachment  and  garnish- 
ment.    Its  whole  scope  and  tenor  lead  to  the  conclusion  that  the 
claim   made   by   counsel  for  appellant   cannot   be    sustained.     The 
argument  of  the  appellant  is  grounded  upon  the  thought  that  when 
the  garnishment  notice  is  served,  tlie  relation  of  debtor  and  creditor 
at  once  arises  between  the  garnishee  and  the  defendant.     It  is  true 
the  statute  provides  that  a  judgment  may  be  rendered  against  the 
garnishee  if  he  does  not  deliver  the  property  to  tlie  sherifl:.     This  is 
a  right  given  to  the  garnishee.     He  may  at  any  time,  after  answer, 
exonerate  himself  by  placing  the   property  at  the  disposal  of  the 
sheriff.     Code,  sec.  21).SG.     If  ])roperty  in  a  distant  State  may  Ije 
reached  by  jirocess  of  garnishment,  in  order  to  avail  himself  of  this 
right  the  garnishee  must  transport  the  jirojierty  to  tlie  sherilf  hold- 
ing the  writ,   and   deliver   it  to   him,     Tlie    garnishee   cannot   be 
deprived  of  this  right,  and  as  he  is  an  innocent  party,  he  cannot  be 
compelled  to  bring  the  jjroperty  witliin  the  jurisdiction  of  the  court. 
Tlie  facts  in  this  case  are  as  good  an  illustration  of  the  fallacy  of 
this  claim  as  can  be  given.     Tlic  steamer  company  had  taken  this 
property  upon  one  of  its  boats,  and  was  under  way,  bound  under  its 
contract  of  affreightment  to  deliver  the  same  at  St.  Louis.     To  avail 
it.Hfdf  of  its  right  under  tlic  above  statute,  it  would  V)e  required  to 
ship  the  goods  back  to  Keokuk,  make  its  answer,  and  deliver  the 


REMEDIES   AS   AGAINST   CARRIER.  381 

property  to  the  sheriff.  The  law  imposes  no  such  an  obligation 
upon  a  garnishee;  and  yet,  under  the  claim  made  by  appellant,  the 
garnishee  must  either  do  this  or  become  the  debtor  of  the  defendant 
for  the  value  of  the  property.  The  law  puts  no  such  a  hardship 
upon  a  garnishee.  It  is  very  different  where  a  debt  is  garnished. 
It  is  a  debt  first  and  last.  In  such  case  the  process  of  the  law  does 
not  practically  compel  the  garnishee  to  become  a  debtor  against  his 
consent.  This  identical  question  was  determined  by  the  Supreme 
Court  of  Wisconsin  in  the  case  of  Bates  v.  Railway  Co.,  60  Wis. 
296;  19  N.  W.  Rep.  72.  In  an  elaborate  opinion,  in  which  many 
of  the  authorities  cited  by  counsel  in  this  case  are  reviewed,  it  was 
held  that  personal  property  under  the  control  of  a  garnishee,  but 
situated  out  of  the  State  where  suit  is  brought,  cannot  be  reached 
by  the  process  of  garnishment.  In  that  case,  as  in  this,  the  prop- 
erty was  in  actual  transit,  and  out  of  the  State,  when  the  garnish- 
ment notice  was  served.  We  do  not  think  it  necessary  to  do  more 
than  refer  to  that  case,  and  the  authorities  therein  cited.  It  ap- 
pears to  us  in  its  reasoning  to  be  eminently  sound,  and  that  no  other 
conclusion  could  have  been  fairly  reached;  and  the  rule  adopted  has 
peculiar  force  when  applied  to  an  attempt  to  garnish  a  common 
carrier  while  transporting  goods  outside  of  the  State  where  suit  is 
commenced.  As  was  said  by  Chief  Justice  Breese  in  Railroad  Co. 
V.  Cobb,  48  111.  402:  "When  the  property  has  left  the  county,  and 
is  in  transit  to  a  distant  point,  though  on  the  same  line  of  railway, 
it  would  be  unreasonable  to  subject  the  company  to  the  costs,  vexa- 
tion, and  trouble  of  such  process,  merely  because  it  had  received 
that  to  be  carried  which  the  law  compelled  it  to  receive  and  carry." 
It  will  be  understood  that  we  do  not  determine  the  question  as  to 
the  right  to  garnish  a  carrier  of  property,  where  the  same  is  within 
this  State.  Affirmed. 


8.     REMEDIES   AS   AGAINST   CARRIER. 

a.    Who  may  sue. 

DAVIS   V.    JAMES. 

King's  Bench.     5  Burr.  2680.     1770. 

This  was  an  action  against  a  common  carrier,  for  not  delivering 
goods  sent  by  him ;  and  the  only  question  was,  "  In  whose  name  the 
action  ought  to  have  been  brought." 

The  fact  was  that  Davis  and  Jordan,  the  present  plaintiffs,  were 
manufacturers  of  cloth,  at  Shipton-]\[allet.  And  their  declaration 
charged,  that  they  being  possessed  of  cloth,  as  of  their  own 


3S2  CARRIERS   OF   GOODS. 

goods,  del ivered_the  same  to  the  defendant,  being  the  common  car- 
rier,  etc.,  and  requested  him  to  deliver  it  safely  and  securely,  for 
them,  to  one  Elizabeth  Bowman  at  the  Three 2S'uus,  at  White  Chapel; 
which  theyjmtlertook^to  do,  for  a  reasonable  price  payable  and  jjaid 
by  the^aul  plaintiffs  to  the  defendant:  but  the  goods  were  lost,  and 
never  deli%-ered.  The  defendant  pleaded  '•  Not  guilty ;  "  and  the 
plaintiffs  obtained  a  verdict. 

The  defendant's  counsel  (Mr.  Sergeant  Davy,  Mr.  Sergeant  Bur- 
land,  and  Mr.  Hotckins)  moved  for  a  new  trial;  objecting  that  the 
action  ought  to  have  been  brought  in  the  name  of  the  conshjnceoi  the 
goods,  and  not  in  the  name  of  the  c<>nsl(jnors :  for  that  the  consignors 
jjurted  irith  their  j^rojierft/,  upon  their  delivering  the  goods  to  the 
carrier;  and  that  no  properti/  remained  in  them  after  such  delivery. 
And  they  cited  as  to  the  point  of  property,  the  case  of  Knight  v. 
Hopper,  Tr.  8,  W.  3,  cases  tempore,  Holt,  Ch.  J.,  pa.  8,  and  the 
case  of  Godfrey  v.  Furzo,  3  Peere  "Williams,  185,  and  Lee  and 
others  v.  Prescott  and  some  other  cases. 

Mr.  Sergeant  Glynn  and  Mr.  Mansfield,  of  counsel  for  the  plain- 
tiffs, answered  that  the  present  question  does  not  turn  upon  the 
strict  property.  The  carrier  has  nothing  to  do  with  the  vesting  of 
the  property:  it  does  not  lie  in  his  mouth  to  say  that  the  consignor 
is  not  the  owner.  He  is  the  owner,  with  respect  to  the  carrier;  who 
has  undertaken  to  him,  and  was  ^jai'tZ  by  him.  He  was  therefore 
servant  to  the  consignor,  but  had  no  connection  at  all  with  the 
consignee.  And  man}'  such  actions  have  been  brought  by  the 
consignor. 

Lord  Mansfield  said,  there  was  neither^ law  nor  conscience  in 
the  objection.  The  vesting  of  the  property  may  differ  according  to 
the  circumstances  of  cases;  but  it  does  not  enter  into  the  present 
question.  This  is  an  action  uj)on  the  agreement  between  the  plain- 
tiffs and  the  carrier.  The  jdaintiffs  were  to  pay  him.  Therefore 
the  action  is  properly  brought  by  tli<*  ])ersous  who  agreed  with  him 


and  were  to  pay  him. 


lUde  discharged  unanimously. 


DAWKS    r.  I'KCK. 

King's  Bench.     8  Term  K.  :i30.     1799. 

Tins  was  an  aotion  on  tlie  case  by  the  consignor  of  goods  against 
the  defendant,  a  common  carrier,  for  not  safely  carrying,  according 
to  liis  undertaking  in  consideration  of  a  eortain  hire  and  reward  to 
l>e  therefore  jaid,  two  casks  of  giii  from  London  to  one  Thomas 
Odey  at  Hillmorton  in  Warwickshire  within  the  time  limited  by 
two  excise  i»ermits,  in  consequence  of  which  tlic  casks  of  gin  beeanic 


REMEDIES   AS    AGAINST    CARKIER.  383 

forfeited  to  the  Crown  and  were  seized.  This  case  came  on  to  be 
tried  at  the  sittings  in  London  after  last  Easter  Term,  when  the 
plaintiff  proved  his  case  by  showing  the  delivery  of  the  casks  to  a 
person  employed  by  the  defendant  at  the  usual  place,  where  they 
were  booked  to  be  sent  by  the  defendant's  wagon  and  the  usual 
price  paid  for  booking  by  the  plaintiff's  servant.  The  casks  were 
directed  to  "Mr.  Odey  Hillmorton,  near  liugby,  Warwickshire,  by 
Peck's  wagon."  It  appeared  that  they  were  afterwards  sent  by  the 
wagon,  and  were  left  at  the  Crown  Inn  at  West  Haddon,  which 
was  the  nearest  place  to  Hillmorton  in  the  road  which  the  wagon 
travelled;  and  where,  after  laying  some  time,  they  were  seized  in 
consequence  of  the  time  mentioned  in  the  permit  for  their  removal 
being  expired.  The  merits  of  the  case  as  between  the  plaintiff  and 
Odey  the  consignee,  or  in  respect  of  the  legality  of  the  seizure,  were 
not  entered  into;  but  the  defendant's  counsel  in  opening  his  case  to 
the  jury  read  a  letter  from  the  plaintiff  to  Odey,  after  the  seizure 
was  known,  in  which  he  said  that  the  liquors  sent  "were  in  quan- 
tity and  prices  exactly  conformable  to  your  (Odey's)  order;  but  by 
what  authority  they  were  ever  left  at  the  Crown  Inn  at  West 
Haddon  remains  for  the  innkeeper  or  the  carrier  to  explain  or 
account  for.  All  I  have  to  observe  is  this,  that  the  goods  having 
been  sent  conforinabl >/  to  your  orders  and  by  the  carrier  you  directed, 
I  shall  certainly  look  to  you  for  their  amount,"  etc.  Upon  reading 
this_letter,  which  was  admitted  to  be  genuine,  Lord  Kenyon  was  of 
opinion  that^  the  action  by  the  present  plaintiff  could  not  be  sup- 
^rte^d ;  f^rjthatjthe  legal  right  to  the  goods  after  such  delivery  was 
vested  in^lie_consignee)  to  whom  alone  the  carrier  was  answerable^ 
ij  at  all^  and  therefore^  the  plaintiff  was  nonsuited^ 

A  new  trial  was  moved  for  in  Trinity  Term  last,  and  a  rule  nisi 
for  setting  aside  the  nonsuit  was  obtained  which  stood  over  till  this 
term.     And  now 

Erskine  and  Raine  showed  cause  against  the  rule.  A  delivery  of 
goods  to  a  carrier  named  by  the  consignee,  as  in  this  case,  is  tanta- 
mount to  a  delivery  to  the  consignee  himself,  and  divests  the  con- 
signor of  the  legal  property  in  them,  though  he  still  retains  an 
equitable  right  of  stopping  them  while  in  transitu  in  case  of  the 
failure  of  the  consignee.  After  such  a  delivery  the  property  in  these 
goods  was  altered  and  the  goods  were  at  the  risk  of  the  consignee; 
and  so  it  was  considered  by  the  plaintiff  himself,  as  appears  by  his 
letter  to  Odey;  consequently  the  plaintiff  can  maintain  no  action  for 
any  loss  or  injury  which  happened  to  them  after  they  became  the 
property  of  another.  In  the  cases  of  Davis  v.  James  [5  Burr.  2680] 
[381]  and  Moore  v.  Wilson  [1  Terra  R.  6o9]  the  ground  of  the 
decisions,  that  the  consignors  might  maintain  the  action,  was  that 
they  had  made  themselves  responsible  to  the  carriers  for  the  price 
of  the  carriage.  In  the  former  of  those  Lord  ^lansfield  said  that 
there  was  no  question  in  the  case  as  to  the  vesting  of  the  property; 


384  C.UIRIERS   OF   GOODS. 

for  the  action  was  founded  on  the  agreement  between  the  carrier 
and  the  phaintiffs  who  were  to  paj*  him.  But  there  is  nothing  in 
tliis  case  from  which  any  property  in  the  plaintiff  can  be  inferred 
whereon  to  found  his  action;  because  his  own  letter  shows  that  he 
had  renounced  all  property  in  the  goods. 

Garroic  and  Yates,  contra.  It  does  not  follow  that  because  the 
consignee  may  maintain  an  action  against  a  carrier  for  the  loss  nf 
goods,  the  consignor  may  not  also  have  his  remedy.  The  cases  show 
that  the  action  may  be  maintained  by  either.  The  reason  of  the 
thing  is  more  in  favor  of  the  action  by  the  consignor,  for  there  is 
a  privity  of  contract  between  him  and  the  carrier;  but  there  is  no 
such  privity  between  the  latter  and  the  consignee.  Here,  too,  the 
booking  was  paid  for  by  the  consignor,  which  is  evidence  of  a  con- 
tract between  him  and  the  carrier.  The  carrier  is  ignorant  of  the 
particular  agreement  between  the  consignor  and  the  consignee ;  and 
at  all  events  the  consignor  is  liable  to  the  carrier  for  the  price  of 
the  carriage,  if  the  consignee  do  not  accept  the  goods.  Davis  v. 
James,  5  Burr.  26S0.  The  liability  of  the  consignor  to  the  carrier 
is  a  sufficient  ground  to  maintain  this  action.  Both  the  case  in  5 
Burr,  and  that  of  Moore  v.  Wilson  proceeded  on  the  admission  that 
the  legal  property  passed  to  the  vendee  b}'  the  delivery  to  tlie  cur- 
rier. All  the  cases  of  stopping  in  transitu  show  that  until  a 
delivery  in  fact  to  the  consignee  a  latent  right  to  the  goods  remains 
in  the  vendor  even  as  against  the  vendee;  but  whatever  the  question 
may  be  ae  between  those,  it  ought  not  to  be  permitted  to  the  carrier 
to  dispute  the  property  of  the  person  from  whom  he  received  tlie 
goods. 

Lord  Kexyox,  C.  J.  I  cannot  subscribe  to  one  part  of  the  argu- 
ment urged  on  behalf  of  the  plaintiff;  namely,  that  the  right  of  prop- 
erty on  which  this  action  is  founded  is  to  fluctuate  according  to  the 
choice  of  the  consignor  or  consignee,  and  that  consequently  eitlier 
of  them  may,  at  his  pleasure,  maintain  an  action  against  the  carrit-r 
for  the  non-delivery  of  the  goods.  In  my  opinion  the  legal  rights 
of  thej)arties  must  be  certain,  and  depend  upon  the  contract  between 
them,  and  caniiot  fluctuate  according  to  the  inclination  _of  either. 
This  question  nuist  be  governed  byjUi^e  cmisulerntiorij  in  whoin^^he 
legal  jjght  was  vested ;  for  he  is_the_person  \vho  has  sustained  the 
loss,  if  any,  by  the  negligence  of  the  carrier;  and  whoeye£  lias  sus- 
tained the  loss  isj;he  proper  x>rirty  to  call  for  compensation  from  the 
person  by  wlioiu  .he_  bus  iK'fn  injun'd^_  The  facts  are  these :  a  man 
in  Warwifksliire  gave  an  order  for  goods  from  London,  which  In* 
directed  to  ])e  sent  Ijy  a  certain  carrier,  and  the  dealer  in  London 
delivered  them,  accordingly,  to  that  carrier  to  be  conveyed  to  the 
'  Upon  t:.       '      '     *    *         lit  there  can  be  no  (loubtjilli-tliai- 

li  n,  deli.  lUst  stand  to  thej-isl^.     Then  ln'ic 

tli»-    iliiiiinum    ft    injuria   an;   to    liini   and    not  to   tlie   vendor,   tlie 
jilaintiff.     I  do  not  find  that  anything  which  I  have  advaincd  is 


KEMEDIES   AS   AGAINST    CARRIER.  385 

broken  in  upon  by  the  two  cases  which  have  been  relied  upon  in  the 
argument:  the  distinction  which  is  there  taken  I  fully  adopt.  In 
the  one  case  the  action  brought  by  the  consignor  against  the  carrier 
was  sustained,  because  the  consignor  was  to  be  answerable  for  the 
price  of  the  carriage;  he  stood,  therefore,  in  the  character  of  an 
insurer  to  the  consignee  for  the  safe  arrival  of  the  goods.  And  the 
subsequent  case  of  jVIoore  v.  Wilson  proceeded  on  the  same  ground. 
It  is  not  disputed  but  that  the  consignee  might  have  maintained  the 
action  in  this  case :  then  if  the  consignee  had  recovered  a  verdict 
against  the  carrier  how  could  such  recovery  by  a  stranger  have  been 
pleaded  in  bar  to  this  action?  And  if  it  could  not,  and  yet  this 
action  could  be  maintained,  the  consequence  would  be  that  the  car- 
rier would  be  liable  to  answer  in  damages  to  both  for  the  same  loss. 
Therefore  common  sense  and  justice  as  well  as  strict  law  are  in 
favor  of  the  objection  made  against  the  plaintiff's  recovering  in  this 
action. 

Grose,  J.  The  plaintiff,  who  was  at  one  time  the  owner  of  these 
goods,  delivered  them  by  the  order  of  Odey  to  the  defendant,  a  com- 
mon carrier,  for  the  purpose  of  having  them  conveyed  to  Odey.  By 
such  delivery  they  became  the  property  of  Odey ;  he  was  liable  to 
be  sued  for  the  value  of  them;  and  it  is  admitted  that  he  might 
have  maintained  an  action  for  any  loss  or  injury  happening  to  them 
by  the  default  of  the  defendant.  It  is  true  that,  while  the  goods 
remained  in  the  hands  of  the  carrier,  there  was  a  latent  right  in  the 
plaintiff  to  stop  them  iii  transitu :  but  that  is  in  its  nature  an  equit- 
able right,  though  now  grown  into  law;  but  the  legal  right  was  by 
the  delivery  to  the  carrier  vested  in  the  consignee,  by  whose  order 
they  were  so  delivered.  But  cases  have  been  cited,  wherein  it  was 
holden  that  the  consignor  might  maintain  the  action:  on  looking 
into  them,  however,  it  appears  that  they  proceeded  on  the  ground  of 
special  agreements  between  the  respective  consignors  and  carriers. 
Now  here  there  was  no  evidence  of  any  such  agreement;  and  the 
letter  from  the  plaintiff  to  Odey  excludes  the  idea  of  any  such  agree- 
ment, for  the  former  therein  insists  that  the  property  was  vested  in 
the  consignee,  whom  he  considered  at  all  events  answerable  to  him 
for  the  value.  Then,  after  it  appears  that  the  plaintiff  had  renounced 
all  right  and  property  in  the  goods  at  the  time,  upon  what  ground 
can  he  claim  an  indemnity  for  the  loss  of  what  belonged  to  another? 
I  am  therefore  of  opinion  that  the  action  against  the  carrier  ought 
to  have  been  brought  by  the  consignee  of  the  goods,  in  whom  the 
property  was  vested  by  the  delivery  to  the  carrier  according  to  his 
own  order. 

Lawrence,  J.  Some  stress  has  been  laid  on  the  circumstance  of 
the  consignor  having  paid  the  carrier  for  booking  the  goods,  as  evi- 
dence of  a  special  contract  between  them,  in  order  to  bring  this  case 
within  those  which  were  cited  at  the  bar;  but  that  circumstance 
would  not  give  a  right  of   action  against   the  carrier   to   recover 

25 


386  CAKPJEKS   OF   GOODS. 

damage  for  the  loss  of  tlie  goods,  if  it  appeared  that  they  were  the 
property  of  another  person.  And  here  it  is  admitted  that  the  action 
might  have  been  brought  by  the  consignee  in  right  of  his  property 
in  them.  It  is  true  that  in  some  special  cases  a  man  may  make 
himself  liable  to  either  of  two  persons  on  account  of  the  same 
interest:  but  that,  is  not  usual;  and  it  is  more  consonant  to  the 
general  principle  of  law  to  refer  all  transactions  of  agents  to  the 
principal  on  whose  account  they  were  entered  into.  Now  here  I 
consider  that  what  was  done  by  the  consignor  in  respect  of  the 
booking  was  as  the  agent  of  the  consignee,  at  whose  risk  the  goods 
were  sent.  And,  generally  speaking,  the  carrier  knows  nothing  of 
the  consignor,  but  only  of  the  person  for  whom  the  goods  are 
directed,  and  to  whom  he  looks  for  the  price  of  the  carriage  upon 
delivery. 

Le  Blaxc,  J.  It  is  admitted  that  the  legal  property  of  the  goods 
was  by  the  delivery  to  the  carrier  vested  in  the  consignee,  and  that 
he  might  maintain  the  action;  and  upon  examination  of  the  cases 
referred  to  in  support  of  the  consignor's  right  of  action,  it  appears 
that  they  proceeded  upon  the  ground  of  a  special  agreement  between 
the  parties  that  tlie  consignor  was  to  pay  for  the  carriage  of  the 
goods.  But  as  there  was  no  evidence  of  any  such  agreement  in  this 
case,  I  think  that  the  nonsuit  was  proper. 

Huh  discharged. 


FIXX  V.    WESTERN   R.    CORP. 
112  Mass.  524.     1S73. 

CoXTKACT  against  the  defendant  corporation,  as  a  common  carrier, 
for  its  failure  to  forward  and  deliver  shingles  to  Joseph  S.  Clark, 
at  Westfield.  Writ  dated  June  28,  1.SC7.  The  declaration  alleged 
the  delivery  to  the  defendant,  its  neglect  to  forward,  and  tlie  destruc- 
tion of  the  shingles  while  in  its  possession. 

At  tlie  second  trial  in  the  8uj)erior  Court,  before  I'itxam,  J., 
after  the  decision  reported  in  102  Mass.  2S3,  the  plaintiff  testified 
that  May  9,  IHGl,  lie  received  at  Oleaii,  in  tlie  State  of  New  York, 
a  written  order  for  a  quantity  of  shingles,  from  J.  S.  (Hark  of 
Soutliampton,  Massachusetts,  to  be  forwarded  to  him  at  St)uthanip- 
ton;  that  he  filled  the  order  by  shi])ping  the  shingles  ordered  on 
board  the  canal-boat  "M.  White,"  at  Olean;  that  when  he  shipjied 
the  shingles,  he  filled  in  triplicate  the  following  shipping  bill: 
"Olean,  May  13,  ISOI,  Shijiix-d  for  account  of  ]\I.  W.  Finn,  on 
V)oard  canal-boat  '  M.  White'  of  Niagara,  N.  Y.,  whereof  James 
Smith  is  Master  for  the  present  trip,  as  follows:  100  bunclu'S,  50 
M.  of  18  in.,  Sorted  Shaved  Shingles,  marked  J.  S.  C. — Extra. 
150  bunches,  75  M.  of  18  in..  No.  1  Shaved  Shingles,  marked  J.  S.  C. 


REMEDIES   AS    AGAINST   CARRIER.  387 

360  bunches,  90  M.  of  18  in.,  Extra  Sawed  Shingles,  marked  J.  S.  C. 
—  Extra.  In  good  order,  to  be  delivered  in  like  good  order, 
without  delay,  to  the  Great  Western  Eailroad  Company  or  their 
Assignees,  at  Greenbush,  N.  Y.  Consignee  to  pay  freight  on  the 
delivery  at  the  rate  of  seventy-five  cents  per  M.  for  Shaved  Shingles, 
and  sixty-two  and  one-half  cents  per  M.  for  the  Sawed  Shingles, 
$2.50  for  towing  less  amount  advanced  Master,  one  hundred  and 
fifty-two  and  fifty-one  hundredths  dollars,  M.  W.  Finn,  Consignor. 
James  Smith,  Master.  $152.50; "  that  one  of  the  bills  was  sent  by 
mail  to  Clark,  one  was  given  to  the  master  of  the  canal-boat,  and 
one  was  retained  by  him;  that  the  shingles  were  put  up  in  bunches 
and  were  branded  upon  the  flat  surface  of  each  bunch;  that  the 
brand  upon  some  of  the  bunches  was  "J.  S.  C."  and  upon  the  rest 
was  "J.  S.  C,  Extra;"  that  upon  about  one  bunch  in  six,  he  wrote 
with  a  lumberman's  pencil,  in  letters  plainly  legible  at  a  distance 
of  twenty  feet,  the  words  "  J.  S.  Clark,  Southampton,  Mass. ;  "  that 
the  shingles  were  forwarded  by  canal  from  Olean  to  Greenbush,  to 
be  forwarded  from  thence  by  the  Western  Eailroad  to  Clark ;  that 
this  was  the  usual  mode  of  conveyance;  that  between  the  years  1858 
and  1861  he  had  sent  upon  similar  orders  6  or  8  lots  of  shingles  to 
Clark,  to  Westfield  or  Southampton,  by  the  same  routes,  marked  in 
the  same  manner  as  the  lot  in  question;  that  on  June  6,  1861,  he 
received  from  the  agent  of  the  Western  Railroad  a  letter  stating 
that  the  boat  "  M.  White  "  had  arrived  at  Greenbush  with  shingles, 
and  asking  for  the  name  of  the  consignee ;  that  upon  the  same  day 
he  wrote  a  letter  in  reply,  in  the  post-office  at  Olean,  in  the  presence 
of  the  postmaster,  stating  that  the  shingles  were  for  J.  S.  Clark,  of 
Southampton,  Mass.,  and  requesting  them  to  be  forwarded  to  him 
at  once ;  that  the  letter  was  addressed  to  "  The  Agent  of  the  West- 
ern Railroad  Company,  Greenbush,  N.  Y. ;  "  that  he  delivered  the 
letter  to  the  postmaster  personally,  in  the  post-office  at  Olean ;  that 
by  the  ordinary  course  of  mail  the  letter  would  arrive  at  Greenbush 
on  the  next  day;  that  at  the  time  of  shipping  the  shingles,  he  drew 
upon  Clark  for  the  price  of  them;  that  the  draft  was  duly  accepted, 
and  paid  at  its  maturity,  but  whetlier  it  was  paid  before  the  fire  or 
not,  he  did  not  know. 

On  his  cross-examination,  the  plaintiff  stated  that  with  each  of 
the  prior  lots  of  shingles,  a  shipping  bill  was  given  to  the  master 
of  the  boat,  by  which  they  were  shipped,  in  which  J.  S.  Clark,  of 
Southampton  or  Westfield,  was  named  as  the  person  to  whom  the 
goods  were  sent,  and  a  like  bill  was  sent  to  Clark. 

Benjamin  Barker,  a  witness  called  by  the  plaintiff,  testified  that 
he  helped  the  plaintiff  mark  the  shingles  as  they  were  loaded  on  the 
canal-boat,  at  Olean,  and  that  he  marked,  with  a  lumberman's  pen- 
cil, on  one  bunch  in  every  six  or  eight,  the  name  and  address,  "J.  S. 
Clark,  Southampton,  Mass.,"  in  letters  that  could  be  plainly  read 
at  a  distance  of  twenty  or  thirty  feet. 


388  CARRIERS   OF   GOODS. 

The  deposition  of  the  postmaster  at  Glean  was  read  in  evidence, 
who  testified  to  the  mailing  of  a  letter  by  Finn,  June  G,  1861, 
addressed  to  the  agent  of  the  AVestern  Kailroad,  but  that  it  was 
directed  to  East  Albany,  X.  Y.,  and  that  his  register  of  that  day 
showed  one  letter  sent  to  East  Albany,  X.  Y.,  and  that  letter  was 
mailed  by  the  postmaster  personally,  and  by  him  sent  out  of  the 
office  by  the  eastern  mail. 

It  appeared  that  the  proper  address  for  the  defendant's  agent  was 
either  Greenbush  or  Albany ;  that  East  Albany  was  a  village  in  the 
town  of  Greenbush,  and  the  western  terminus  of  the  defendant's 
road,  and  that  Greenbush  was  sometimes  known  as  East  Albany, 
and  that  letters  addressed  to  East  Albany  had  at  different  times 
been  received  at  and  delivered  from  the  post-office  at  Greenbush, 
and  that  letters  addressed  to  Green,  the  defendant's  agent  at  East 
Albany,  had  been  frequently  received  by  him  from  the  post-office  at 
Greenbush. 

The  facts  as  to  the  shipment  of  the  prior  lots  of  shingles  were 
also  testified  to  by  Clark,  substantially  as  by  the  plaintitf,  though 
he  did  not  testify  that  he  received  shipping  bills  with  them. 

Asa  C.  Parker,  the  defendant's  station  agent  at  Westfield,  tes- 
tified that  he  knew  of  the  receipt  of  the  prior  lots  over  the  road, 
but  that  no  bills  of  lading  or  any  shipping  bills  accompanied  any 
of  tliese  that  he  ever  saw. 

Thomas  L.  Green  testified  that  he  was  agent  for  the  defendant  at 
Greenbush  in  18G1,  and  had  been  for  some  time  prior  to  1.S5S,  and 
was  still  its  agent  there;  that  no  one  but  himself  and  George  H. 
Pen  field  opened  letters  addressed  to  him  or  to  the  agent  of  the 
defendant  at  Greenbush  or  Alljany,  and  that  he  never  received  or 
saw  the  letter  of  June  G,  testified  to  having  been  sent  by  the  plain- 
tiff, and  that  up  to  the  time  of  tlie  fire  he  did  not  know  tlie  name 
of  the  consignee;  that  when  the  shingles  in  controversy  arrived  at 
Greenbush,  the  master  of  the  canal-boat  exliibited  to  him  the  ship- 
ping bill  before  mentioned,  and  there  being  no  person  named  therein 
to  whom  the  shingles  were  to  l)e  delivered,  he  declined  to  receive 
them  until,  at  tlie  solicitation  of  the  master,  lie  agreed  to  take  them 
upon  storage,  and  that  he  wrote  the  letter  mentioned  by  the  plaintiff 
a.s  having  been  received  l)y  him,  before  he  agreed  to  take  them  on 
storage,  and  as  soon  as  he  saw  tlie  way-bill ;  that  a  day  or  two  after- 
wards he  examined  the  shingles  and  turned  over  one-third  of  the 
bundles,  so  that  he  could  see  all  sides  of  them,  in  order  to  see  if 
there  was  a  name  of  any  consignee,  or  any  direction  upon  tlieni, 
and  found  no  mark  or  direction  upon  them  exce]»t  "  J.  S.  C.,"  and 
"J.  S.  C.  Extra;  "  that  he  had  no  rec(dlection  of  having  seen  either 
of  the  prior  lots  testified  of  by  Finn  and  by  Clark,  that  h«'  ha<l  no 
recollection  of  any  of  the  prior  consignmetits,  and  only  knew  from 
the  Vjooks  that  they  were  forwarded;  that  it  at  that  time  was,  and 
still  is,  a  custom  of  the  defendant  corporation  that  all  freight  com- 


REMEDIES   AS   AGAINST   CARRIER.  389 

ing  to  their  road  by  way  of  the  Erie  Canal,  as  these  shingles  did, 
should  be  governed  by  the  directions  contained  in  the  shipping  bill 
accompanying  them,  and  not  by  the  marks  upon  the  goods. 

On  cross-examination,  he  admitted  that  he  received  before  the  fire 
two  letters  from  Clark,  and  one  from  Parker,  the  station  agent  at 
Westfield,  in  relation  to  the  shingles  in  controversy. 

The  plaintiff  and  William  G.  Bates  both  testified  that  at  two 
former  trials  of  the  case  of  Finn  v.  Clark,  in  which  the  same  facts 
were  in  issue,  Green  did  not  testify  as  to  his  receiving  the  shingles 
on  storage,  and  did  testify  that  he  had  seen  the  name  of  J.  S. 
Clark,  Southampton,  in  full,  on  some  of  the  bunches  of  the  former 
consignments. 

The  foregoing  is  all  the  material  evidence  in  the  case. 

The  defendant  requested  the  court  to  rule  that  upon  the  whole 
evidence  in  the  case  the  plaintiff  was  not  entitled  to  recover. 

That  if  the  shingles  were  sent  in  pursuance  of  an  order  from  Clark 
in  Southampton,  to  Finn  in  Olean,  to  be  forwarded  by  the  usual 
conveyances  to  him  in  Southampton,  and  the  shingles  were  so  for- 
warded with  proper  directions,  so  that  it  was  the  duty  of  the  defend- 
ant upon  the  receipt  thereof  to  forward  them,  then  the  shingles 
belonged  to  Clark,  and  the  plaintiff  could  not  recover. 

That  if  the  shingles  were  ordered  of  Finn  at  Olean,  by  Clark,  to 
be  forwarded  to  him  at  Southampton,  and  were  forwarded  by  the 
usual  means  of  conveyance,  properly  directed  to  Clark,  then  the 
shingles  belonged  to  Clark,  and  the  plaintiff  could  not  recover. 

These  rulings  the  court  refused  to  make  in  the  form  requested, 
but  instructed  the  jury  at  length  as  to  the  duties  and  liabilities  of 
common  carriers,  and  their  obligations  in  forwarding  freight,  as 
applicable  to  the  shingles  in  question,  which  instructions  were  not 
objected  to  by  either  party,  and  further  instructed  them  that  if  the 
defendant's  agent  knew,  by  reason  of  the  receipt  of  the  letter  alleged 
to  have  been  sent  to  him,  or  by  reason  of  his  having  seen  the  name 
and  address  of  Clark  upon  the  bundles,  that  the  shingles  belonged  to 
and  were  intended  for  Clark,  it  was  the  duty  of  the  defendant  to 
forward  them  within  a  reasonable  time  thereafter,  and  that  the 
plaintiff  could  not  recover  unless  he  satisfied  the  jury  that  the 
defendant's  agent  received  the  letter  of  June  6,  or  saw  the  full 
name  and  address  of  Clark  upon  the  bunches  of  shingles,  and  that 
the  jury  might  consider  the  fact  of  the  former  shipment  from  Finn 
to  Clark  as  evidence  upon  the  question  whether  or  not  the  agent 
knew  for  whom  the  shingles  were  intended,  provided  they  were 
satisfied  that  in  such  previous  instances  the  freight  was  not  accom- 
panied with  proper  way-bills,  disclosing  its  destination. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  found,  especially, 
upon  the  question  submitted  to  them  by  the  court,  that  Green  did 
see  the  full  name  and  address  of  Clark  upon  the  bunches  of  shingles. 
The  defendant  excepted. 


390  CARRIERS   OF   GOODS. 

Wells,  J.  The  only  question  argued  by  the  defendant,  upon 
these  exceptions,  is  whether  the  action  for  loss  of  the  property  can 
be  maintained  by  and  in  behalf  of  Finn,  It  is  contended  that  if 
there  was  a  delivery,  with  proper  directions  for  the  transportation, 
so  as  to  charge  the  defendant  with  responsibility  as  carrier,  then  the 
title  in  the  property  had  passed  to  Clark,  the  consignee;  and  the 
right  of  action  for  injury  to  it  was  in  him  alone.  On  the  other 
hand,  if  proper  directions  for  its  transportation  had  not  been  given, 
then  the  defendant  is  not  liable  at  all  as  carrier,  according  to  the 
former  decision  in  102  Mass.  283.  It  is  not  contended  that  the 
defendant  is  liable  as  warehouseman.  In  either  aspect  of  the  case, 
upon  this  view  of  the  law,  no  recovery  could  be  had  by  Finn. 

The  jury  having  found  that  the  defendant  became  responsible  as 
carrier,  the  case  is  now  presented  only  in  that  aspect.  We  think 
also  that  the  facts,  as  disclosed  by  the  present  bill  of  exceptions, 
show  that  the  title  to  the  property  had  passed  to  Clark  before  the 
loss  occurred;  leaving  in  Finn  at  most  only  a  right  of  stoppage  in 
transitu. 

The  liabilities  of  a  common  carrier  of  goods  are  various;  and 
when  not  controlled  by  express  contract,  they  spring  from  his  legal 
obligations,  according  to  the  relations  he  may  sustain  to  the  par- 
ties, eitlier  as  employers,  or  as  owners  of  the  property.  Prima  fdcie, 
his  contract  of  service  is  with  the  party  from  Avliom,  directly  or 
indirectly,  he  receives  the  goods  for  carriage;  that  is,  with  the 
consignor.  His  obligation  to  carry  safely,  and  deliver  to  the  con- 
signees, subjects  him  to  liabilities  for  any  failure  tlierein,  which 
may  be  enforced  by  the  consignees  or  by  the  real  owners  of  the 
property,  by  appropriate  actions  in  their  own  names,  independently 
of  the  original  contract  by  which  the  service  was  undertaken.  Such 
remedies  are  not  exclusive  of  the  right  of  the  party  sending  the 
goods,  to  have  liis  action  upon  the  contract  implied  from  the  delivery 
anrl  receipt  of  them  for  carriage.  This,  in  effect,  we  understand  to 
be  the  result  of  the  elaborate  discussion  of  the  principles  ap]dicable 
to  the  case  in  Blanchard  v.  Page,  8  Gray,  281.  That  decision  may 
not  1)6  precisely  in  point,  as  an  adjudication,  to  govern  the  case  now 
before  us;  for  tlie  reason  that  tliere  was  a  written  receipt  or  bill  of 
lading  for  carriage  by  water,  and  the  ])laintiffs  were  acting  in  the 
transaction  as  agents  for  the  owners  of  the  goods;  yet  the  general 
principles  evolved  do  apply,  and  are  satisfactory  to  us  for  the  deter- 
mination of  the  present  case. 

When  carrying  goods  from  seller  to  purchaser,  if  tlierc  is  nothing 
in  the  relations  of  the  several  ])arties  except  what  arises  from  tlio 
fact  that  the  seller  commits  the  goods  to  the  carrier  as  the  ordinary 
and  convenient  mode  of  transmission  and  delivery  in  execution  of 
tlie  order  or  agr«*ement  of  sale,  the  employment  is  by  the  seller,  the 
contract  of  service  is  with  liim,  and  actions  based  ufion  that  roiitraet 
may,  if  they  must  not  necessarily,  be  in  the  name  of  the  consignor. 


REMEDIES   AS   AGAINST   CARRIER.  391 

If,  however,  the  purchaser  designates  the  carrier,  making  him  his 
agent  to  receive  and  transmit  the  goods;  or  if  the  sale  is  complete 
before  delivery  to  the  carrier,  and  the  seller  is  made  the  agent  of 
the  purchaser  in  respect  to  the  forwarding  of  them,  —  a  different 
implication  would  arise,  and  the  contract  of  service  miglit  be  held 
to  he  with  the  purchaser.  This  distinction,  we  think,  must  deter- 
mine whether  the  right  of  action  upon  the  contract  of  service, 
implied  from  the  delivery  and  receipt  of  goods  for  carriage,  is  in 
the  consignor  or  in  the  consignee.  In  the  case  of  Blanchard  v. 
Page  the  action  was  maintained  in  the  name  of  the  consignors, 
who  were  merely  the  agents  of  the  owners  in  forwarding  the  goods. 
But  that  was  explicitly  on  the  ground  of  the  express  contract  with 
them,  embodied  in  the  receipt  or  bill  of  lading. 

As  already  suggested,  the  consignee,  by  virtue  of  his  right  of  pos- 
session, or  the  purchaser,  by  virtue  of  his  right  of  property,  may 
have  an  action  against  the  carrier  for  the  loss,  injury,  or  detention 
of  the  goods,  though  not  party  to  the  original  contract.  Such  action 
is  in  tort  for  the  injury  resulting  from  a  breach  of  duty  imposed  by 
law  upon  the  carrier;  or,  in  the  language  of  the  early  cases,  upon 
"  the  custom  of  the  realm." 

There  are  many  cases,  both  in  England  and  in  the  United  States, 
in  which  the  doctrine  appears  to  be  maintained  that,  except  when 
there  is  a  special  contract,  a  remedy  for  injury  resulting  from  breach 
of  duty  by  a  carrier  can  be  had  only  in  the  name  and  behalf  of  some 
one  having  an  interest  in  the  property  at  the  time  of  the  breach, 
which  is  injuriously  affected  thereby. 

The  rule  might  well  be  conceded,  if  the  exceptions  were  not  too 
restricted.  It  will  hold  good  in  actions  of  tort,  because  they  are 
founded  upon  injury  to  some  interest  or  right  of  the  plaintiff.  And 
the  cases  which  support  this  view  are  mostly,  if  not  altogether, 
actions  of  tort.  This  is  true  of  the  leading  early  cases  from  which 
the  doctrine  is  mainly  derived:  Dawes  v.  Peck,  8  T.  R.  330;  also 
of  Griffith  V.  Ingledew,  6  S.  &  R.  429;  Green  v.  Clark,  5  Denio, 
497,  13  Barb.  57,  and  2  Kernan,  343;  and  does  not  appear  from 
the  report  to  be  otherwise  in  Krulder  v.  Ellison,  47  N.  Y.  36.  In 
discussing  the  grounds  of  decision  it  seems  to  have  been  assumed  by 
various  judges,  as  we  think,  erroneously,  that  the  right  of  recovery 
necessarily  involved  the  question  with  whom  the  original  contract 
of  service  was  made.  And  the  effort  to  make  the  inference  of  law 
as  to  that  contract  conform  to  Avhat  was  deemed  the  proper  decision 
as  to  the  right  to  recover  for  the  injury,  has  led  to  some  statements 
of  legal  inference  which  appear  to  us  to  be  somewhat  overstrained. 
Thus  in  Dawes  v.  Peck  it  is  said  by  Lawrence,  J.,  that,  in  the  pay- 
ment of  freight  by  the  consignor,  he  is  to  be  regarded  as  the  agent 
of  the  consignee ;  that  the  carrier  generally  knows  nothing  of  the 
consignor,  but  looks  to  the  person  to  whom  the  goods  are  directed. 
In  Freeman  v.  Birch,  1  Nev.  &  Man.  420,  it  is  said  by  Parke,  J., 


392  CARRIERS   OF   GOODS. 

"  In  ordinary  cases  the  vendor  employs  the  carrier  as  the  agent  of 
the  vendee."  In  Green  v.  Chirk,  13  Barb.  57,  it  is  said  by  Allen,  J., 
that  when  the  consignee  is  the  legal  owner,  or  the  property  vests  in 
him  by  the  delivery  to  the  carrier  "  it  is  an  inference  of  law,  and 
not  a  presumption  of  fact,  that  the  contract  for  the  safe  carriage  is 
between  the  carrier  and  consignee,  and  consequently  the  latter  has 
the  le^^l  right  of  action."  But  in  the  same  case  in  the  Court  of 
Appeals,  2  Kernan,  343,  it  was  regarded  as  immaterial  by  whom  the 
contract  svas  made,  and  whether  the  plaintiff  was  consignor  or  con- 
signee, for  the  purpose  of  an  action  of  case  for  negligence  by  which 
his  property  was  injured. 

In  Griffith  v.  Ingledew,  the  dissenting  opinion  of  Gibson,  J., 
assuming  that  the  contract  of  carriage  formed  the  basis  of  the 
action,  combats  with  great  force  of  reasoning  the  proposition  that  a 
contract  with  the  consignee  is  the  legal  result  of  the  receipt  of  goods 
by  a  carrier,  when  no  privity  with  or  authority  from  the  consignee 
is  shown,  and  none  professed  by  the  consignor  at  the  time,  unless 
the  direction  of  the  goods  to  the  address  of  the  consignee  can  be 
taken  to  be  such  profession. 

The  whole  force  and  effect  of  the  reasoning  in  Blanchard  v.  Page 
is  in  the  same  direction.  The  ordinary  bill  of  lading  or  receipt, 
given  to  the  consignor  by  the  carrier,  simply  expresses  what  is  the 
real  significance  of  the  transaction  independently  of  the  writing. 
There  is  no  reason  for  giving  a  different  interpretation  to,  or  draw- 
ing a  different  inference  from,  the  acts  of  i)arties,  because  of  a 
writing  which  is  nothing  but  a  voucher  taken  to  preserve  the 
evidence  of  those  acts. 

Whatever  remedy  is  sought  in  contract  must  necessarily  be  sought 
in  the  name  of  the  party  with  whom  the  contract  is  entered  into, 
whether  it  be  special,  that  is,  express,  or  implied.  The  question 
then  is  simply  this:  In  the  absence  of  an  express  agreement,  with 
whom  is  the  carrier's  contract  of  employment  and  service  in  respect 
of  goods  delivered  to  him  by  the  seller  to  convey  to  the  purchaser, 
wlien  there  is  no  privity  or  relation  of  agency  between  the  carrier 
and  the  purchaser  save  that  whicli  si)rings  from  possession  of  the 
goods,  and  the  seller  has  no  authority  to  make  a  contract  for  the 
j.urcliaser  except  what  is  to  be  implied  from  the  agreement  of 
purchase  or  the  order  for  the  goods? 

Tlie  law  imposes  ujKm  tlie  carrier  tlie  duty  to  transjiort  the  goods, 
allows  him  a  reasonable  compmsation,  and  gives  him  a  lien  uium 
the  goods  for  security  of  its  payment.  It  also  implies  a  promise 
on  the  one  part  to  carry  and  deliver  the  goods  safely,  and,  on  the 
other,  U)  ])av  tlie  reasonable  comi)ensation.  These  two  jTomises 
form  the  contract.  Eacli  is  the  countori)art  and  the  consideration 
of  the  other.  If  the  contract  of  carriage  is  with  the  consignee,  the 
reciprocal  promise  to  pay  the  freight  must  be  his  also.  Against  this 
inference  are  the  considerations  that  the  seller  is  acting  in  his  own 


REMEDIES    AS   AGAINST   CARRIER.  393 

behalf  in  making  the  delivery,  and  tlie  goods  remain  his  property 
until  the  contract  with  the  carrier  takes  effect.  The  title  of  the 
purchaser  does  not  exist  until  that  contract  is  made.  It  follows  as 
a  result.  The  carrier  is  not  agent  for  either  party,  but  an  inter- 
mediate, independent  principal.  If  made  an  agent  of  the  consignee, 
his  receipt  of  the  goods  cuts  off  the  right  of  stoppage  in  transitu  on 
the  one  hand,  and  satisfies  the  Statute  of  Frauds  on  the  other.  He 
has  a  right  to  look  for  his  compensation  to  the  party  who  employs 
him,  unless  satisfied  from  his  lien.  The  fact  that,  as  between  seller 
and  purchaser,  the  purchaser  must  ordinarily  pay  the  expenses  of 
transportation  as  a  part  of  the  cost  of  the  goods,  does  not  affect  the 
relations  of  contract  between  the  carrier  and  either  party.  We  dis- 
cover nothing  in  the  nature  of  the  transaction,  and  we  doubt  if  there 
is  anything  in  the  practice  or  understanding  of  the  community 
which  will  justify  the  inference  that  one  to  whom  goods  are  sent 
by  carrier,  without  direction  or  authority  from  him,  other  than  an 
agreement  of  purchase  or  consignment,  is  the  party  who  employed 
the  carrier  and  is  bound  to  pay  him ;  unless  he  assumes  such  liability 
by  receiving  the  goods  subject  to  the  charge. 

The  contract  is  made  when  the  goods  are  received  by  the  carrier. 
If  it  is  then  the  contract  of  the  consignee,  it  will  not  cease  to  be  so, 
and  become  the  contract  of  the  consignor,  by  reason  of  subsequent 
events.  Suppose,  then,  the  seller  exercises  his  right  of  stoppage 
in  transitu.  Is  the  purchaser  still  liable  to  the  carrier  for  the 
unpaid  freight  ?  Suppose  the  contract  of  sale  to  be  without  writing 
and  within  the  Statute  of  Frauds.  The  contract  of  the  carrier  is 
not  within  the  statute,  and  the  authority  to  the  seller  to  make 
such  contract  in  behalf  of  the  purchaser  need  not  be  in  writing. 
Is  the  carrier  to  look  to  the  purchaser  or  to  the  seller  for  the 
freight?  Or  does  it  depend  upon  the  contingency  whether  the  con- 
tract of  sale  is  affirmed  or  avoided?  And  if  affirmed,  and  the  carrier 
should  deliver  the  goods  without  insisting  on  his  lien,  of  whom 
must  he  collect  it?  The  authorities  hold,  when  the  agreement  of 
sale  is  within  the  Statute  of  Frauds,  that  the  contract  of  the  carrier 
is  with  the  consignor.  Coombs  v.  Bristol  &  Exeter  Railway  Co.,  3 
H.  &  N.  510;  Coats  V.  Chaplin,  3  Q.  B.  483. 

We  do  not  think  the  carrier's  contract  and  right  to  recover  his 
freight  can  be  made  to  depend  upon  what  may  prove  to  be  the  legal 
effect  of  the  negotiations  between  consignor  and  consignee  upon  the 
title  to  the  property  which  is  the  subject  of  transportation.  His 
contract  must  arise  from  the  circumstances  of  his  employment.  He 
has  a  right  to  look  for  his  compensation  to  the  party  who  required 
him  to  perform  the  service  by  causing  the  goods  to  be  delivered  to 
him  for  transportation.  And  that  party,  unless  he  is  the  mere 
agent  of  some  other,  may  enforce  the  contract,  and  sue  for  its  breach 
by  the  carrier. 

One  who  forwards  goods  in  execution  of  an  order  or  agreement 


394  CARRIERS   OF   GOODS. 

for  sale  is  not  a  mere  agent  of  the  purchaser  in  so  doing.  He  is 
acting  in  his  own  interest  and  behalf,  and  his  dealings  with  the 
carrier  are  in  his  own  right  and  upon  his  own  responsibility,  unless 
he  has  some  special  authority  or  directions  from  the  purchaser,  upon 
which  he  acts. 

The  plaintiff  in  this  case  is  therefore  entitled  to  maintain  his 
action  upon  the  contract;  and  we  think  there  is  no  sufficient  reason 
shown  to  prevent  his  recovering  the  full  value  of  the  property 
destroyed.  If  Clark  was  the  owner  at  the  time,  and  his  interest  has 
been  in  no  way  satisfied  or  discharged,  the  plaintiff  will  hold  the 
proceeds  recovered  in  trust  for  his  indemnity.  Clark  might  have 
prosecuted  an  action  of  tort  in  his  own  name,  and  recovered  the 
value  of  his  propt-rty  lost;  in  which  event  the  damages  in  Finn's  suit 
would  have  been  nominal,  or  reduced  to  whatever  amount  of  actual 
loss  he  sutfered.  But  it  is  not  pretended  that  Clark  has  ever  brought 
any  suit  or  made  any  claim  upon  the  defendant,  although  knowing 
of  the  pendency  of  this  suit,  and  having  testified  as  a  witness  in  the 
same;  and  all  claim  by  him  is  long  since  barred.  It  is  to  be  pre- 
sumed that  he  acquiesces  in  the  recovery  by  Finn.  If  there  were 
any  doubt  upon  this  point,  we  might  order  a  new  trial  upon  the 
question  of  damages  only.  As  there  is  none,  the  judgment  must 
be  upon  the  verdict. 

Exceptions  overruled. 


IvRrLDE?.    V.    ELLISON, 
47  N.  Y.  30.     \bl\. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  tlie  second  judicial  department,  affirming  a  judgment  in 
favor  of  plaintiff  entered  upon  a  verdict. 

This  action  is  Ijrouglit  to  recover  the  value  of  a  barrel  of  spirits 
shellac  delivered  to  defendants,  who  were  common  carriers  upon  tlie 
canal,  consigned  to  Newell  &  Turpin  of  Rochester,  and  alleged  to 
have  V)een  lost  by  the  defendants.  The  shellac  was  sent  by  a  boat 
of  defendants  jmrsuant  to  the  follf)wing  order:  — 

".Send  U8,    via    canal,  one    barrel    imitiitioii  shellac,  such   as   you  sent  us 

laBt. 

■  Nrwki.l  iS:  TinriN.  Rdchcstcr." 

Upon  the  shipment,  plaintiff  sent  a  bill  of  sale  to  the  consignees. 
When  the  barrel  arrived  at  Rochester  it  was  emjity,  and  was  re- 
shipped  to  the  plaintiff  and  received  by  liim.  Defemlants*  counsel 
ft,sked  the  court  to  charge,  that  if  plaintiff  sold  the  l)arrel  of  varnish 
to  Xewell  &  Turpin  to  be  delivered  to  them  upon  defendants'  l)oat, 


EEMEDIES   AS   AGAINST   CARRIER.  395 

upon  such  delivery  the  title  passed  to  Newell  &  Turpin,  and  the 
plaintiff  could  not  recover.  The  court  declined  so  to  charge,  and 
defendants  excepted. 

Peckham,  J.  Had  the  plaintiff,  the  vendor  of  the  goods,  the 
right  to  maintain  an  action  for  their  loss?  Here  the  evidence  shows 
that  iSTewell  &  Turpin,  of  Kochester,  had  ordered  the  goods  from 
plaintiff,  of  New  York  City,  to  be  sent  to  them  "vta  canal,  such  as 
you  sent  last."  Plaintiff  sent  them  a  bill  by  mail  of  the  purchase, 
and  shipped  the  goods  "via  canal,"  by  defendant's  boat.  Plaintiff 
also  remitted  to  the  purchasers  a  bill  of  sale  of  the  goods. 

The  presumption  of  law  is,  that  the  consignee  is  the  owner  of  the 
goods  in  the  absence  of  any  evidence  on  the  subject,  and  is  the  proper 
party  to  sue,  for  their  injury  or  loss.  Sweet  v.  Barney,  2.3  N.  Y. 
335  [318];  Price  v.  Powell,  3  Comst.  322;  Everett  v.  Saltus,  15 
Wend.  474;  Ang.  on  Carriers,  §  497,  and  cases  cited. 

There  have  been  decisions  qualifying  this  rule  as  to  the  proper 
party  to  sue,  some  holding  that  an  action  might  be  maintained  by 
the  consignor  where  he  had  made  a  special  contract  for  the  trans- 
portation. 

In  Moore  v.  Wilson,  1  Tr.  R.  659,  an  action  was  sustained  by  the 
consignor  against  a  carrier,  where  it  appeared  that  the  consignee  had 
agreed  with  the  plaintiff  to  pay  for  the  transportation,  Buller,  J., 
holding  that  the  agreement  was  between  the  "consignor  and  the 
carrier,  the  former  of  whom  was,  by  law,  liable."  One  case  only  is 
referred  to;  this  was  in  1787,  in  a  note,  1  Atk.  248,  where  the  Lord 
Chancellor  declares  the  rule  to  be  the  other  way;  and  that  such  an 
action  would  not  lie. 

In  Joseph  v.  Knox,  3  Camp.  320,  where  goods  had  been  shipped 
by  plaintiff,  an  agent  of  the  owner,  who  resided  abroad,  to  be  for- 
warded to  a  given  place,  and  the  freight  paid  by  the  agent  and  con- 
signor, a  recovery  was  allowed  by  Lord  Ellenborough,  at  nisi  2)ri2cs, 
on  the  ground  of  the  special  contract.  This  in  1812.  So  in  Davis 
V.  James,  5  Burr.  2680  [381],  a  like  rule  was  held  where  the  con- 
sigQor  agreed  to  pay,  and  paid  the  carrier  in  1770.  In  Dawes  v. 
Peck,  8  Durn.  &  E.  330  [382],  it  was  unanimously  held,  after  full 
citation  of  authorities  and  consideration,  that  an  action  by  the  con- 
signor would  not  lie  for  the  loss  of  the  goods,  when  they  had  been 
delivered  to  a  particular  carrier  by  order  of  the  consignee,  though 
he  paid  for  booking  the  goods.  Lord  Kenyon,  Ch.  J.,  in  deliver- 
ing the  opinion  of  the  court,  observed  (K.  B.):  "This  question  must 
be  governed  by  the  consideration  in  whom  the  legal  right  was  vested, 
for  he  is  the  person  who  has  sustained  the  loss."  The  court  held, 
that  this  booking  was  done  as  the  agent  of  the  consignee.  This  in 
1799.  In  Brower  v.  Hodgson,  2  Camp.  36,  a  like  decision  at  nisi 
prius,  by  Lord  Ellenborough,  where  the  goods  were  shipped  by 
order,  and  on  account  of  the  consignee,  as  appeared  by  the  bill  of 
lading.     So  held,  on  the  ground  that  the  property  was  in  the  con- 


396  CARRIERS   OF   GOODS. 

signee,  from  the  time  of  delivery,  on  board  the  vessel.  This  iu 
1S09. 

In  Dutton  r.  Solomonson,  3  Bos.  &  Pul.  5S2,  same  doctrine. 
Lord  Alvanley,  Ch.  J.,  expressed  his  surprise  that  the  point  should 
be  questioned,  as  he  said  it  appeared  to  him  to  be  a  proposition  as 
well  settled  as  any  iii  the  law,  that  if  a  tradesman  order  goods  to  be 
sent  by  a  carrier,  though  he  names  no  particular  carrier,  the  moment 
the  goods  are  delivered  to  the  carrier  it  operates  as  a  delivery  to  the 
purchaser.  The  whole  property  immediately  vests  in  him;  and  he 
alone  can  bring  an  action  for  any  injury  done  to  them. 

In  1803,  in  Freeman  v.  Birch,  1  Nev.  &  Man.  420,  a  laundress 
sent  linen  she  had  washed  to  the  owner  in  London,  and  paid  the 
carriage.  Lost  by  tlie  carrier,  the  action  by  laundress  sustained  on 
the  ground  that  she  had  a  special  property  in  the  linen;  but 
admitted  by  both  justices,  Littledale  and  Parke,  that  if  there  be 
a  complete  sale  the  property  is  out  of  the  vendor  altogether.  There 
the  vendor  transmits  as  agent  for  the  vendee. 

Excepting  cases  of  special  contract,  where  it  has  formerly  been 
held  that  the  consignor  may  bring  the  action,  I  think  the  cases 
agree  substantially  that  the  action  must  be  brought  in  the  name  of 
the  consignee  only,  as  the  owner;  and  that  the  owner  alone  can 
bring  tlie  action.  Angell  on  Carriers,  §  407.  In  such  case,  he  and 
not  the  consignor  must  bring  the  action,  for  the  consignor  has  his 
remedy  against  the  purchaser.  Id.  Where  the  contract  of  pur- 
chase and  sale  is  not  valid  or  comi»lete  by  reason  of  the  Statute  of 
Frauds,  the  goods  being  over  the  value  of  £10,  and  the  title,  there- 
fore, still  vests  in  the  consignor,  though  the  goods  have  been 
delivered  to  the  carrier,  no  acceptance,  and  all  still  vesting  in  parol, 
the  action  must  be  brought  by  the  consignor.  Coombs  v.  The  Br. 
and  Ex.  K.  Co.,  3  Hurl.  &  Xor.  510.  But  all  the  judges,  in  de- 
livering opinions,  admitted  the  rule  to  be,  that  the  consignee  must 
have  brought  the  action  had  the  order  been  in  writing,  and  the  sale 
valid.  The  question  was  whether  tlie  property  passed  to  the  vendee. 
If  it  did,  he  must  sue. 

In  1858,  see  Totter  v.  Lansing,  1  J.  U.  215.  Tliat  the  property 
pa.ssed  to  the  consignee,  in  tlie  case  at  bar  on  its  delivery  to  the 
carrier  "  wj'a  the  canal,"  is  entirely  clear.  People  v.  Hayncs,  14 
Wend.  540;  Ang.  on  Car.  §407;  Smith's  Merc.  Law,  200,  5th  ed., 
2  Kent's  Com.  8th  ed.,  p.  in  mar.,  400,  and  cases  cited.  Tliere  is 
11'. tiling  disclosed  in  tlie  case  to  qualify  or  modify  that  title.  In 
til.-  language  of  the  books,  it  is  a  comjilete  sale.  No  special  con- 
tract by  the  vendor  with  the  carrier,  and  no  jtayment  of  the  price  of 
transportation  if  either  could  affect  the  title  of  the  vendee.  I  think 
it  clearly  could  not.  The  order  being  positive  and  in  writing,  and 
•lie  mode  of  conveyance,  where  the  goods  were  delivered 
'  I  rinr  ])ursuant  to  that  order,  the  title  jiassed  ab.solut(dy  to 

the  vendee,  subject  to  the  right  of  stoppage  in  trmisitu,  and  it  gave 


KEMEDIES    AS   AGAINST    CARRIER.  397 

no  right  of  action  to  the  vendor  to  sue  for  the  loss  of  the  vendee's 
goods,  though  the  vendor,  as  agent  for  vendee,  paid  the  carriage,  or 
in  like  character,  specially  contracted  with  the  carrier  to  transport. 
Had  the  consignor  agreed  with  the  consignees  to  deliver  the  goods 
to  them  at  Kochester,  the  rule  would  be  different.  Then  the  con- 
signees would  not  be  the  owners  till  delivery  at  Rochester.  But 
upon  what  principle  a  vendor  can  sue  for  the  loss  of  another's  goods, 
it  is  difficult  to  see. 

In  this  case  the  right  of  action  being  in  the  vendee  under  the  facts 
disclosed,  the  return  of  the  empty  barrel  to  the  vendor,  and  his 
sending  on  another  in  no  manner  affected  that  right,  either  by 
extinguishing  or  by  assigning  it  to  the  consignor. 

Judgment  should  be  reversed,  and  new  trial  ordered,  costs  to 
abide  event. 


FREEMAN  v.   BIRCH. 
King's  Bench.     1  Nev.  &  Man.  420.     1833. 

Case  against  a  carrier  for  negligence.  At  the  trial  before 
Patterson,  J.,  at  the  sittings  for  Middlesex  in  this  term,  the 
following  facts  appeared:  — 

The  plaintiff,  a  laundress  residing  at  Hammersmith,  was  in  the 
habit  of  sending  linen  to  and  from  London  by  the  defendant's  cart, 
which  travelled  from  Chiswick  to  London.  A  basket  of  linen  belong- 
ing to  Spinks  was  sent  by  the  defendant's  cart,  and  on  its  way  to 
London  part  of  its  contents  were  either  lost  or  stolen.  Spinks  did 
not  pay  the  carriage  of  the  linen.  It  was  objected  on  the  part  of 
the  defendant  that  the  present  action  was  misconceived,  and  that 
the  action  should  have  been  brought  by  the  owner  of  the  linen. 
The  learned  judge  overruled  the  objection,  and  a  verdict  was  found 
for  the  plaintiff. 

Heaton  now  moved  for  a  ncAv  trial  on  the  ground  of  misdirection. 
The  action  should  have  been  brought  by  the  owner  of  the  linen,  and 
not  by  the  laundress.  It  is  laid  down  in  Selwyn's  Nisi  Prius,  p. 
405,  that  the  action  against  a  carrier  for  the  non-delivery  or  loss  of 
goods  must  be  brought  by  the  person  ia  whom  the  right  of  property 
in  goods  is  vested.  [Parke,  J.  The  person  who  employs  the  car- 
rier must  bring  the  action.]  The  action  against  the  carrier  must  be 
brought  by  the  person  in  whom  the  legal  right  was  vested,  Dawes  v. 
Peck,  8  T.  R.  330  [382].  [Parke,  J.  The  circumstance  of  the  legal 
right  being  in  one  person,  may  be  evidence  of  employment  by  that 
person.]  In  Dawes  v.  Peck,  the  action  was  brought  by  the  vendor 
of  the  goods  against  the  carrier;  the  vendee  had  named  the  carrier, 
and  it  was  holden,  that  because  the  legal  right  to  the  goods  had 


398  CAKKIERS   OF   GOODS. 

vested  in  the  vendee,  lie  should  have  brought  the  action.  Again, 
iu  Dutton  V.  Solomonson,  3  Bos.  &  Pull.  584,  it  was  held,  that  where 
goods  were  ordered  by  a  tradesman  to  be  sent  by  a  carrier,  the 
delivery  to  the  carrier  vested  the  property  in  the  purchaser,  and  he 
alone  could  maintain  an  action  against  the  carrier  for  the  loss  of  the 
goods:  King  c.  Meredith,  2  Camp.  639.  This  action  therefore  is 
improperly  brought. 

LiTTLEUALE,  J.  In  the  cases  cited,  the  property  in  the  goods 
was  entirely  gone  out  of  the  vendor.  In  this  case  the  laundress 
retained  a  special  property  in  the  goods. 

Pakke,  J.  I  am  of  the  same  opinion.  In  the  case  of  the  vendor 
and  vendee,  if  the  goods  are,  whilst  the  carrier  has  the  care  of  them, 
to  be  at  the  risk  of  the  vendor,  he  must  bring  the  action  against  the 
carrier.  In  ordinary  cases  the  vendor  employs  the  carrier  as  the 
agent  of  the  vendee.  See  Davis  v.  James,  5  Burr.  2C80  [381]; 
iloore  V.  Wilson,  1  T.  K.  G59. 

Bule  refused. 


ELKIXS  V.   BOSTON  &  MAINE  R. 
19  X.  H.  337.     1849. 

Assumpsit.  The  declaration  alleged  tliat  on  the  twenty-first  of 
April,  1S47,  the  defendants  were  common  carriers  of  goods  for  hire 
from  Andover,  Mass.,  to  Exeter;  that  the  plaintiff  delivered  to  them 
an  overcoat  to  be  carried  from  Andover  to  Exeter,  and  delivered  to 
tlie  plaintiff  for  a  reasonable  reward  to  be  paid  therefor,  in  consider- 
ation of  which  the  defendants  received  the  coat  and  undertook  to 
transport  and  deliver  it  accordingly,  wliicli  they  have  neglected  and 
refused  to  do. 

At  the  trial  upon  the  general  issue  it  appeared  in  evidence  that 
the  overcoat  belonging  to  the  jdaintiff,  whose  name  is  Cliarles  I). 
Elkins,  was  rolled  uj)  in  a  bundle  witli  another  overcoat,  Ixdonging 
to  Jonathan  Elkins,  and  a  label  put  upon  the  bundle  with  this 
address  upon  it:  "Jonathan  Elkins,  Exeter,  N.  H."  The  bundle 
was  left  V)y  Jonathan  Elkins  in  tlie  commtm  room  of  the  depot  at 
Andover,  and  the  depot-niast<'r  was  requested  by  liim  to  send  tlie  bun- 
dle by  the  next  passenger  train  to  ICxcter,  which  he  said  he  would  do. 

The  defendants  objected  that  the  evidence  did  not  support  the 
dr-claration,  but  varied  materially  tlierefrom;  Init  the  court  ruled  it 
to  1m-  Huflicient. 

Tiie  jury  returned  a  verdict  for  the  plaintiff,  wliich  the  defendants 
moved  to  set  aside. 

GiLciiRiHT,  C.  J.  Thf  f)nly  question  in  the  case  is  whetlier  tlie 
evidence  supports  the  declaration.     It  is  alleged  that  the  jdaintiff 


EEMEDIES    AS    AGAINST   CARRIER.  399 

delivered  to  the  defendants  an  overcoat,  to  be  carried  from  Andover 
to  Exeter,  and  delivered  to  the  plaintiff.  It  appeared  that  two  over- 
coats were  rolled  up  in  a  bundle,  one  of  which  belonged  to  the  plain- 
tiff and  the  other  belonged  to  Jonathan  Elkins ;  that  the  bundle  was 
directed  to  Jonathan  Elkins,  and  left  by  him  at  the  depot.  The 
only  question  properly  raised  by  the  case  is  whether  upon  these  facts 
the  plaintiff  may  maintain  an  action  against  the  defendants. 

In  the  case  of  Weed  v.  The  Saratoga  and  Schenectady  Railroad, 
19  Wend.  534,  cited  by  the  counsel  for  the  defendants,  bhe  declara- 
tion alleged  that  the  railroad  company  promised  the  plaintiffs  to 
carry  for  the  plaintiffs  a  trunk  containing  certain  goods,  etc.,  and 
bank  bills,  but  that  they  carelessly  lost  the  trunk  and  its  contents. 
The  second  count  alleged  an  undertaking  to  carry  the  trunk  and  its 
contents.  The  evidence  showed  that  the  plaintiffs'  clerk,  who  was 
travelling,  directed  his  baggage  to  be  put  into  the  proper  car,  but 
on  his  arrival  at  the  place  of  his  destination,  he  found  that  one  of 
his  trunks  was  lost,  containing  $285  belonging  to  the  plaintiffs, 
which  he  had  retained  for  his  travelling  expenses.  The  trunk 
belonged  to  one  Martin.  It  was  said  by  Cowen,  J.,  that  the  vari- 
ance was  material.  "  The  contract,  as  set  forth,  was  to  carry  the 
trunk  and  money  of  the  plaintiffs.  The  proof  is  that  the  trunk 
belonged  to  Martin,  a  stranger,  nor  was  it  shown  that  the  plaintiffs 
had  any  connection  with  it.  If  the  trunk  were  Barnes'  (the  clerk), 
the  variance  would  be  the  same,  and  so  I  think  if  he  had  hired  or 
borrowed  it  of  Martin  for  his  own  use."  .  .  .  "The  proof  is  at  most 
of  a  contract  with  the  plaintiffs  to  carry  the  money  only.  The 
declaration,  then,  fails  in  describing  correctly  a  special  executory 
contract,  wherein  great  exactness  is  always  demanded.  Where  the 
declaration  is  on  a  promise  to  do  several  things,  and  only  one  is 
proved,  this  is  a  variance.  .  .  .  The  whole  contract  in  the  case  at 
bar  was  made  ostensibly  with  Barnes.  If  in  legal  construction  it 
can  be  turned  in  favor  of  the  plaintiffs ,  it  must  be  in  respect  to  their 
ownership  of  the  articles  undertaken  to  be  conveyed,  and  there  can 
be  no  pretence  that  the  trunk  of  a  stranger,  Martin,  or  the  trunk  of 
Barnes,  in  which  the  plaintiffs  had  leave  to  deposit  their  money, 
would  be  comprehended  within  the  principle." 

Thus  far  the  decision  is  not  an  authority  for  the  defendants.  The 
question  of  variance  was  distinctly  raised  and  decided,  although  it 
finally  turned  out  not  to  be  very  material,  inasmuch  as  the  plaintiffs 
were  permitted  to  amend,  by  striking  out  the  trunk  from  the  declara- 
tion. But  the  learned  judge  goes  farther,  and  after  raising  the  ques- 
tion whether  Barnes  was  not  more  than  a  mere  agent,  and  was  not 
a  bailee,  having  himself  an  interest  in  the  money  for  his  travelling 
expenses,  says,  "It  is  doubtful,  at  least,  whether  a  promise  to  carry 
for  a  bailee  can  enure  to  the  benefit  of  the  bailor,"  although  that 
question  did  not  arise  in  the  case.  Upon  this  question  there  are 
several  decisions  worthy  of  consideration. 


400  CARRIERS    OF   GOODS. 

In  the  present  case  the  coat,  which  is  the  subject  of  this  action, 
being  in   the   possession  of  Jonathan   Elk  ins,    the  Latter  must  be 
regarded  as  the  bailee,  and  the  plaintiff  as  the  bailor.     It  is  imma- 
terial for  what  particular  purpose  the  plaintiff's  coat  was  in  the  pos- 
session of  Jonathan  Elkins.     The  purpose  probably  was  that  the 
latter  might  cause  it  to  be  forwarded  to  the  plaintiff.     In  such  a 
case  it  is  clear  that  the  bailee  has  such  a  continuing  interest  in  the 
goods,  until  their  arrival  at  the  place  of  destination,  as  to  entitle 
him  to  sue  the  carrier  in  case  they  are  lost  or  damaged  on  their 
passage.     Thus,  in  the  case  of  Freeman  v.  Birch,  1  Nev.  &  Man. 
420  [397],  which  was  an  action  against  a  carrier  for  negligence,  it 
appeared  that  the  plaintilT,  a  laundress,  residing  at  Hammersmith, 
was  in  the  habit  of   sending   linen   to  and  from   London  by  the 
defendant's  cart,   which   travelled  from  Chiswick  to   London.     A 
basket  of  linen  belonging  to  one  Spinks  was  sent  by  the  defendant's 
cart,  and  on  its  way  to  London  part  of  its  contents  were  either  lost 
or  stolen.     Spinks  did  not  pay  the  carriage  of  the  linen.     It  was 
objected  on  the  part  of  the  defendant  that  the  present  action  was 
misconceived,  and  that  the  action  should  have  been  brought  by  the 
owner  of  the  linen.     But  the  objection  was  overruled  and  a  verdict 
was  found  for  the  plaintiff.     A  motion  was  made  for  a  new  trial, 
but  refused  by  the  Court  of  the  Queen's  Bench  on  the  ground  that 
under  the  circumstances  the  bailee  retained  a  special  property  in  the 
goods  sufficient  to  support  the  action. 

The  property  in  articles  bailed  is  for  some  purposes  in  the  bailee 
and  for  some  in  the  bailor.  The  right  of  action  must  partake  of  the 
same  properties,  and  must  so  continue  until  it  is  finally  fixed  and 
determined  by  one  or  the  other  party  appropriating  it  to  himself. 
Tlie  decision  in  Freeman  v.  Birch,  although  it  clearly  establishes 
the  right  of  a  bailee  to  sue,  does  not  necessarily  exclude  the  bailor 
from  bringing  an  action,  if  he  chooses  to  anticipate  the  bailee  in  so 
doing.  The  rule  in  such  cases  is  stated  by  I'arke,  ?..,  to  be,  that 
either  the  bailor  or  the  bailee  may  sue.  and  whichever  first  obtains 
damages,  it  is  a  full  satisfaction.     Nicliols  /'.  r.astiird,  2  Cro.  ]\Iees. 

&  Kos.  G60. 

The  principle  appears  to  be  well  settled,  that  if  it  is  not  expressed 
that  an  agent  contracts  in  behalf  of  another,  and  the  name  of  tlie 
princii.iil  is  not  disr-losed  by  him,  a  suit  may  be  maintained  in  the 
name  of  tlie  priiuupal.  In  the  present  case,  Jonathan  Klkins  was 
clearly  the  agent  of  the  jdaintiff,  and  tlie  name  of  tlie  jtlaintiff  was 
not  disclosed  by  him.  This  principle  is  recognized  in  the  case  of 
Si:!.H  V.  liond,  5  li.  &  Ad.  381),  where  Lord  Denman  says,  "It  is  a 
::■  '.-e.stablished  rule  of  law,  that  where  a  contract,  not  under  seal, 
is  made  with  an  agent  in  his  own  name,  for  an  undisclosed  ijrincipal, 
cither  the  agent  or  the  prineii.al  may  sue  upon  it;  the  d.'fendant,  in 
the  latter  case,  being  entitled  to  be  jdaced  in  the  sam.'  situation  at 
the  time  of  the  disclosure  of  the  real  princij.al,  as  if  the  agent  had 


REMEDIES    AS   AGAINST   CARRIER.  401 

been  the  contracting  party."  In  the  case  of  Higgins  v.  Senior,  8 
Mees.  &  Wels.  834,  it  was  held  that  the  suit  might  be  maintained 
on  the  contract,  either  in  the  name  of  the  principal  or  of  the  agent, 
and  that,  too,  although  required  to  be  in  writing  by  the  Statute 
of  Frauds.  Beebe  v.  liobert,  12  Wend.  413;  Taintor  v.  Prendergast, 
3  Hill,  92.  The  same  principle  was  adopted  by  the  Supreme  Court 
of  the  United  States,  in  the  memorable  case  of  the  loss  of  the 
steamer  " Lexington,"  in  Long  Island  Sound.  In  the  case  of  the  Kew 
Jersey  Steam  Navigation  Co.  v.  The  Merchants'  Bank,  6  Howard, 
344,  the  bank  had  delivered  to  Harnden,  an  express  agent,  a  large 
amount  of  specie  for  transportation,  by  whom  it  was  delivered  to 
the  Steam  Navigation  Co.,  who  were  then  running  the  ''Lexington" 
between  New  York  and  Stonington.  It  was  held  that,  notwith- 
standing the  contract  of  affreightment  was  made  by  Harnden  with 
the  company  personally  for  the  transportation  of  the  specie,  it  was, 
in  contemplation  of  law,  a  contract  between  the  bank  and  the  com- 
pany, and  although  Harnden  made  the  contract  in  his  own  name, 
and  without  disclosing  the  name  of  his  employers  at  the  time,  the 
bank  might  maintain  a  suit  upon  the  contract  directly  against  the 
company.  So  where  the  plaintiff  agreed  with  B,  a  common  carrier, 
for  the  carriage  of  goods,  and  B,  without  the  plaintiff's  directions, 
agreed  for  the  carriage  with  C,  who,  without  the  plaintiff's  know- 
ledge, agreed  with  D, .  a  third  carrier,  it  was  held  that  the  plaintiff 
might  maintain  an  action  against  D,  for  not  delivering  the  goods, 
and  that  by  bringing  the  action  the  plaintiff  affirmed  the  contract 
made  with  D,  by  C,  and  could  not  afterwards  recover  from  B. 
Sanderson  v.  Lamberton,  6  Binn.  129. 

Upon  the  principles  above  stated,  our  opinion  is  that  the  plaintiff 
may  maintain  this  action. 

Judgment  on  the  verdict. 


b.    Form  of  Action. 

DALE   V.    HALL. 
King's  Bench.     1  Wils.  281.     1750. 

Action-  upon  the  case  against  a  shipmaster  or  keelman  who  car- 
ries goods  for  hire  from  port  to  port;  the  plaintiff  does  not  declare 
against  him  as  a  common  carrier  upon  the  custom  of  the  realm,  but 
the  declaration  is,  that  the  defendant  at  the  special  instance  of  the 
plaintiff  undertook  to  carry  certain  goods  consisting  of  knives  and 
other  hardware  safe  from  such  a  port  to  such  a  port,  and  that  in 
consideration  thereof  the  plaintiff  undertook  and  promised  to  pay 
him  so  much  money,  that  the  goods  were  delivered  to  the  defendant 

26 


402  CARRIERS   OF   GOODS. 

on  board  his  keel,  that  the  goods  were  kept  so  negligently  by  him 
that  they  were  spoiled,  to  the  plaintiff's  damage;  upon  the  general 
issue  non  assumpsit;  this  cause  came  on  to  be  tried  before  Justice 
BuKXETT,  and  the  plaintiff  proved  the  goods  were  all  in  good  order 
and  clean  when  they  were  delivered  on  board,  and  that  they  were 
damaged  by  water  and  rusted  to  the  value  of  2-kl.  this  was  all  the 
plaintiff's  evidence. 

For  the  defendant  it  was  insisted  at  the  trial  that  as  the  plaintiff 
had  proved  no  particular  negligence  in  the  defendant,  that  he  might 
be  permitted  to  give  in  evidence  that  he  had  taken  all  possible  care 
of  the  goods,  that  the  rats  made  a  leak  in  the  keel  or  hoy,  whereby 
the  goods  were  spoiled  by  the  water  coming  in,  that  they  pumped 
and  did  all  they  could  to  prevent  the  goods  being  damaged,  which 
evidence  the  judge  permitted  to  be  given,  and  thereupon  left  it  to 
the  jury,  who  found  a  verdict  for  the  defendant. 

It  was  now  moved  for  a  new  trial  by  Mr.  Clayton  and  Mr.  Ford 
for  tho  plaintiff,  who  insisted  that  the  evidence  given  for  the 
defendant  ought  not  to  have  been  received. 

Foster  (Justice)  reported  that  Buknett  (Justice)  was  doubtful 
whether  the  evidence  given  by  the  defendant  was  admissible  or  nut, 
and  submits  that  to  the  court;  but  if  it  was  admissible,  he  is  very 
well  satisfied  with  the  verdict. 

Sir  Thomas  Booth  and  Sergeant  Bootle,  for  the  defendant,  insisted 
that,  this  declaration  not  being  upon  the  custom  of  the  realm,  but 
upon  a  particular  contract,  and  tluit  the  breach  assigned  being,  that 
by  the  negligence  of  the  defendant  the  goods  were  spoiled,  that 
therefore  nerjUgence  is  the  very  gist  of  this  action,  and  the  defendant 
has  proved  there  was  no  negligence;  indeed,  if  the  declaration  had 
been  that  the  defendant  promised  to  keep  safely  the  goods  as  well 
as  to  carry  them  safely,  he  must  have  kept  them  safely  at  all 
events. 

Lee,  Chief  Justice.  This  is  a  nice  distinction  indeed;  I  am  of 
opinion  that  the  evidence  given  for  the  defen(hint  was  not  admis- 
sible; the  declaration  is,  that  the  defendant  undertook  for  Iiire  to 
carry  and  deliver  the  goods  safe,  and  the  breach  assigned  is  that 
they  were  damaged  by  negligence;  this  is  no  more  than  what  the 
law  says,  everything  is  a  negligence  in  a  carrier  or  a  lioyman,  that 
the  law  does  not  excuse,  and  he  is  answerable  for  goods  the  instant 
he  receives  tliem  into  his  custody,  and  in  all  events,  excejit  tliey 
happen  to  be  damaged  by  the  act  of  Gnd  or  the  King's  enemies ;  and 
a  ])romise  to  carry  safely  is  a  promise  to  keep  safely. 

WitifiiiT,  Justife,  of  tlie  same  o])inion. 

Dknison,  Justico.  The  law  is  very  clear  in  tliis  case  for  the 
plaintiff;  the  declaration  upon  the  custom  of  the  realm  is  the  same 
in  efToct  with  the  X)re8ent  declaration;  in  the  old  forms  it  is,  that 
the  (lef«'ndant  susrrpit,  etc.,  which  sliows  that  it  is  ex  rontrarfii ;  in 
the  prcHcnt  case  the  promise  to  carry  safely  tucd  imt  be  ])rovcd,  the 


EEMEDIES    AS    AGAINST   CARRIER.  403 

law  raises  it,  the  breach  is  very  right  that  he  did  not  deliver  them 
safely,  but  so  negligently  kept  them  that  they  were  spoiled. 
Foster  of  the  same  opinion ;  and  a  new  trial  was  granted. 


BAYLIS   V.    LINTOTT. 
Common  Pleas.     L.  R.  8  C.  P.  345.     1873. 

This  was  an  application  for  a  rule  to  tax  the  costs  of  the  action 
under  the  following  circumstances. 

The  declaration  in  substance  stated  that  the  defendant  was  the 
proprietor  of  a  certain  hackney  carriage,  which  said  hackney  car- 
riage was  at  the  time,  etc.,  under  the  care,  management,  and  direc- 
tion of  defendant's  servant,  and  plying  for  hire  within  the  limits  of 
the  Metropolitan  Police  District,  and  thereupon,  and  after  the  pass- 
ing of  the  Act  of  Parliament  made  and  passed  in  the  seventh  year 
of  her  present  Majesty,  "An  Act  for  regulating  Hackney  and  Stage 
Carriages  in  and  near  London,"  the  plaintiff,  at  the  request  of  the 
defendant,  hired  the  said  hackney  carriage  of  the  defendant  to  con- 
vey and  carry  the  plaintiff  and  her  luggage  from  and  to  certain 
specified  places,  and  thereupon,  in  consideration  of  the  premises, 
and  that  the  plaintiff,  together  with  her  said  luggage,  would,  at  the 
request  of  the  defendant,  become  and  be  a  passenger  to  be  carried 
and  conveyed  in  the  said  hackney  carriage  as  aforesaid,  and  of  cer- 
tain reward  to  the  defendant  in  that  behalf,  he,  the  defendant,  as 
and  being  such  proprietor  of  the  said  hackney  carriage  as  aforesaid, 
then  promised  the  plaintiff  to  convey  her  and  her  said  luggage  safely 
and  securely  from  and  to  the  places  specified,  and  accepted  her  and 
her  said  luggage  to  be  so  carried;  but  the  defendant,  not  regarding 
his  duty  as  such  proprietor  of  the  said  hackney  carriage  as  afore- 
said, or  his  said  promise,  did  not  nor  would  carry  or  convey  the 
plaintiff  and  her  said  luggage  safely  and  securely,  but  so  carelessly 
and  negligently  behaved  and  conducted  himself  by  his  said  servant 
in  that  behalf  in  and  about  the  premises,  that  by  and  through  the 
mere  carelessness,  negligence,  and  improper  conduct  of  the  defend- 
ant by  his  said  servant,  and  not  otherwise,  part  of  the  plaintiff's 
said  luggage  became  and  was  wholly  lost  to  the  plaintiff.  Plea: 
payment  into  court  of  £15.  Replication  that  £15  was  not  sufh- 
cient.  The  plaintiff  at  the  trial  obtained  a  verdict  for  £5  above  the 
amount  paid  into  court,  and  the  question  therefore  arose  whether 
the  plaintiff  having  recovered  a  sum  not  exceeding  £20  was  de- 
prived of  costs  by  virtue  of  the  County  Courts  Act,  1867,  30  &  31 
Vict.  c.  142,  s.  5. 
Kjdd,  in  moving  for  a  rule  nisi,  contended  that  the  action  must 


404  c.vrrjERS  of  goods. 

be  considered  as  founded  on  tort.  The  case  of  Tattan  i'.  Great 
"Western  Ky.  Co.^  decided,  with  reference  to  the  question  of  costs, 
that  an  action  against  a  common  carrier  for  not  safely  delivering 
goods  is  an  action  of  tort  founded  on  the  custom  of  the  realm,  and 
not  one  of  contract.  It  is  submitted  that  the  position  of  a  hackney- 
carriage  proprietor  with  respect  to  the  luggage  of  persons  hiring  his 
carriage  is  that  of  a  common  carrier.  The  declaration  must  be 
treated  as  one  in  tort;  the  statement  in  the  declaration  of  the  con- 
tract is  mere  inducement,  showing  the  facts  from  which  the  duty 
arose;  the  cause  of  action  is  the  breach  of  duty. 

BoviLL,  C.  J.  I  think  there  should  be  no  rule.  The  provisions 
of  the  County  Courts  Act,  30  &  31  Vict.  c.  142,  s.  5,  deprive  the 
plaintiff  of  costs  if  he  does  not  recover  a  sum  exceeding  £20  in 
actions  founded  on  contract,  or  £10  in  actions  founded  on  tort. 
The  defendant  paid  into  court  the  sum  of  £15,  and  the  jury 
awarded  the  further  sum  of  £5,  so  that  in  the  whole  the  sum 
recovered  did  not  exceed  £20.  The  question  thus  arises  whether 
the  present  action  is  founded  on  contract  within  the  meaning  of  the 
section.  On  looking  to  the  form  of  the  declaration,  it  apjiears  to  me 
clear  that  the  cause  of  action  therein  alleged  is  one  founded  on  con- 
tract. In  many  cases  previous  to  the  introduction  of  the  present 
rules  of  pleading  it  became  material  to  consider,  with  a  view  to  pre- 
venting misjoinder  of  counts,  whether  a  count  could  be  framed  in 
case  instead  of  assu/iij>sit.  And  it  was  a  common  practice  to  treat 
causes  of  action  founded  on  contract  as  actions  of  tort,  and  to  frame 
declarations  alleging  a  contract  and  a  duty  arising  therefrom,  and 
complaining  of  a  breach  of  such  duty  by  neglect  to  perform  the 
contract.  Here  the  contract  alleged  in  the  declaration  Avould  be 
implied  by  law  on  the  hire  of  the  carriage,  and  the  cause  of  action 
is  therefore  rightly  put  as  founded  on  tlie  contract.  In  the  case  of 
Tattan  v.  Great  Western  Ey.  Co.,^  which  Avas  cited,  the  Queen's 
liench  treated  the  cause  of  action  as  one  founded  on  tort;  but  the 
Lord  Chief  Justice  expressed  his  regret  at  the  anomalous  state  of 
the  law,  by  which  an  option  being  given  to  the  plaintiff  to  sue  in 
either  form,  the  right  to  costs  depended  merely  on  the  form  of  the 
declaration.  It  is  sufficient  to  say  with  regard  to  that  case,  that  the 
court  considered  the  form  of  declaration  to  amount  to  case  and  not 
contract.  There  was  no  statement  there  of  any  promise  or  con- 
sideration as  in  this  case;  but  the  cause  of  action  was  founded 
wholly  on  the  breach  of  duty.  The  case  is  therefore  clearly  distin- 
guishalde  from  the  present,  inasmuch  as  it  proceeds  on  the  precise 
character  of  the  cause  of  action  as  alleged  in  the  declaration,  which 
was  wholly  different  from  that  in  tlie  present  case.  In  the  case  of 
Legge  V.  Tucker,^  where  the  action  was  against  a  livery-stahle  kee]ter 
for  negligence  in  the  care  of  a  horse,  tlie  court  thought  that  tlic 

«  2  K.  &  E.  844;  20  L.  .1.  (Q.  K)  1^1. 
M  M.  i  .V.  5U0  ;  26  L.  .J.  (Kx.)  71. 


REMEDIES   AS   AGAINST   CARRIER.  405 

cause  of  action  was  founded  on  contract.  This  decision  preceded 
that  of  Tattan  v.  Great  AVestern  Ry.  Co.,^  and  though  it  appears  to 
have  been  cited,  the  court  in  delivering  their  judgment  made  no 
observations  upon  it.  Since  both  those  decisions  the  case  of  Morgan 
V.  Ravey  '^  was  decided.  In  that  case  an  innkeeper's  executors  were 
sued  for  the  not  keeping  securely  the  property  of  a  traveller,  and 
with  reference  to  the  difference  between  their  liability  in  cases  of 
tort  and  contract,  it  became  necessary  to  consider  whether  the  action 
was  founded  on  tort  or  contract,  and  it  was  considered  that  it  was 
founded  on  contract,  and  the  executors  were  therefore  held  liable. 
Mr.  Bullen,  in  his  excellent  work  on  Pleading,  3d  ed.,  p.  121,  states 
that  the  question  of  costs  depends  on  the  substance  of  the  thing,  not 
on  mere  matter  of  form.  Pollock,  C.  B.,  says,  in  delivering  the 
considered  judgment  of  the  court  in  Morgan  v.  Ravey :  ^  "  We  think 
that  the  cases  have  established  that  w^here  a  relation  exists  between 
two  parties  which  involves  the  performance  of  certain  duties  by  one 
of  them  and  the  payment  of  reward  to  him  by  the  other,  the  law 
will  imply,  or  the  jury  may  infer,  a  promise  by  each  party  to  do 
what  is  to  be  done  by  him."  Looking  to  those  authorities,  if  it 
were  now  necessary  to  consider  the  case  of  Tattan  v.  Great  Western 
Ry.  Co.  ,^  and  to  decide  upon  what  seems  to  amount  to  a  conflict  of 
authority,  I  should  be  disposed  to  adopt  the  decisions  of  the  Court 
of  Exchequer  and  the  principles  on  which  they  are  based,  but  it  is 
not  necessary  to  do  so  in  this  case,  inasmuch  as  it  is  distinguishable 
from  Tattan  v.  Great  Western  Ry.  Co.^on  the  form  of  the  declaration. 

Keating,  J.  I  am  of  the  same  opinion.  I  do  not  pronounce  any 
opinion  on  the  question  whether  the  decision  in  Tattan  v.  Great 
Western  Ry.  Co.^  is  right  or  not,  for  I  think  that  case  is  distin- 
guishable from  the  present.  There  the  declaration  was  against  a 
common  carrier  on  the  custom  of  the  realm ;  here  a  promise  is  alleged 
and  a  breach  of  such  promise.  It  seems  to  me  that  the  cause  of 
action  here  is  plainly  founded  on  a  contract  within  the  meaning  of 
the  section. 

HoNYMAN,  J.  I  am  of  the  same  opinion.  There  are  many  actions 
against  carriers  and  other  parties  in  which  the  declaration  may  be 
framed  either  in  tort  or  contract.  The  distinction  between  the  two 
was  very  material  in  former  days.  The  rule  is  thus  laid  down  by 
Tindal,  C.  J. ,  in  Boorman  v.  Brown :  *  "  That  there  is  a  large  class 
of  cases  in  which  the  foundation  of  the  action  springs  out  of  privity 
of  contract  between  the  parties,  but  in  which,  nevertheless,  the 
remedy  for  the  breach  or  non-performance  is  indifferently  either 
assumpsit  or  case  upon  tort,  is  not  disputed;  such  as  actions  against 
attorneys,  surgeons,  and  other  professional  men,  for  want  of  proper 

1  2  E.  &  E.  844  ;  29  L.  J.  (Q.  B.)  184. 
a  6  H.  &  N.  265  ;  30  L.  J.  (Ex.)  131. 
8  6H.  &N.,  at  p.  276. 
*  3  Q.  B.  516. 


406  CARRIERS   OF   GOODS. 

skill  or  proper  care  in  the  service  they  undertake  to  render;  actions 
against  common  carriers,  against  shipowners,  on  bills  of  lading, 
against  bailees  of  different  descriptions,  and  numerous  other  instances 
occur  in  which  the  action  is  brought  in  tort  or  in  contract  at  the 
election  of  the  plaintiff."  The  decisions  on  the  right  to  costs  in 
such  cases  do  not  appear  to  be  very  easil}^  reconcilable.  It  does  not 
seem  altogether  satisfactory  that  the  plaintiff  should  by  declaring 
in  one  particular  form  rather  than  another  alter  the  liability  of  the 
defendant  in  respect  of  costs,  but  many  of  the  authorities  seem  to 
show  that  he  may  do  so.  In  this  case,  however,  the  form  of  the 
declaration  in  my  opinion  is  clearly  that  of  a  declaration  in  con- 
tract. The  duty  alleged  is  alleged  as  proceeding  from  the  contract 
between  the  parties.  The  plaintiff  having  chosen  so  to  frame  the 
cause  of  action  cannot  now,  it  appears  to  me,  turn  round  and  say 
that  for  the  purposes  of  costs  the  cause  of  action  is  based  on  tort. 
As  regards  the  decision  in  Tattan  v.  Great  Western  Ey.  Co.*  and 
the  other  decisions  that  have  been  referred  to,  I  pronounce  no 
opinion  as  to  which  we  ought  to  follow  if  it  were  necessary  to  decide 
between  them.  It  is  clear  on  consideration  of  the  former  case  that 
the  declaration  there  was  a  declaration  on  the  case,  and  the  present 
case  is  therefore  distinguishable. 

Mule  refused. 


POZZI    I'.    SHIPTON. 

Queen's  Bench.     8  A.  &  E.  9(;:3.     1838. 

Case.  The  declaration  stated  that,  on,  etc.,  the  plaintiff  caused 
to  be  delivered  to  the  defendants,  and  the  defendants  then  accepted 
and  received  of  and  from  the  plaintift",  a  certain  package  containing  a 
looking-glass  of  the  plaintiff,  of  great  value,  to  wit,  etc.,  to  be  taken 
care  of,  and  carried  and  convej-ed  l»y  the  defendants  from  Liverpool 
to  l>irmingham  in  the  county  of  Warwick,  and  there,  to  wit,  at 
liinningham,  to  be  delivered  to  one  Peter  Pensey  for  the  i)laintiff, 
for  certain  reasonable  reward  to  the  defendants  in  that  behalf;  and 
thereupon  it  then  became  and  was  the  duty  of  the  defendants  to  take 
due  care  of  the  said  package  and  its  contents  whilst  they  so  had  the 
charge  thereof  for  the  jiurpose  aforesaid,  and  to  take  due  and  reason- 
able care  in  and  about  the  conveyance  and  delivery  thereof  as  afore- 
said; yet  the  defendants,  not  regarding  their  duty  in  that  behalf, 
but  contriving  and  fraudulently  intending  to  deneive  and  injure  the 
plaintiff  in  that  ])elialf,  did  not  nor  would  take  due  care  of  tlie  said 
j)afkat,'e  and  its  eontents  aforesaid,  whilst  they  had  the  cliargo 
thereof  for  the  purpose  aforesaid,  or  take  due  and  reasonable  care 

>  2  E.  &  E.  8H  ;  '2'J  L.  .1.  (Q.  B. )  184. 


REMEDIES    AS   AGAINST   CAKRIER.  407 

in  and  about  the  conveyance  and  delivery  thereof  as  aforesaid;  Lnt 
on  the  contrary  thereof,  the  defendants,  whilst  they  had  the  charge 
of  the  said  package  and  its  contents  for  the  purpose  aforesaid,  to 
wit,  on,  etc.,  took  so  little  and  such  bad  and  improper  care  of  the 
said  package  and  its  contents,  and  such  bad  and  unreasonable  care 
in  and  about  the  conveyance  and  delivery  thereof  as  aforesaid,  and 
so  carelessly  and  negligently  conducted  themselves  in  the  premises, 
that  the  said  looking-glass,  being  of  the  value  aforesaid,  afterwards, 
to  wit,  on,  etc.,  became  and  was  broken  and  greatly  damaged.  To 
the  damage  of  the  plaintiff  of  £10,  etc. 

Pleas:  1.  Xot  guilty.  2.  That  plaintiff  did  not  cause  to  be 
delivered  to  defendants,  nor  did  defendants  accept  from  plaintiff, 
the  said  package,  etc.,  to  be  taken  care  of  and  carried,  etc.,  and 
safely  to  be  delivered,  etc.,  for  reward  in  that  behalf,  in  manner  and 
form,  etc.     Conclusion  to  the  country.     Joinder. 

[Verdict  for  plaintiff  and  a  rule  nisL] 

Patteson,  J.  This  is  an  action  against  carriers  for  negligence. 
A  verdict  was  found  for  the  plaintiff  against  one  of  the  defendants 
only,  and,  upon  a  rule  for  a  new  trial  having  been  obtained,  the 
case  was  argued  in  last  Easter  Term  before  my  brothers,  Littledale, 
CoLEKiDGE,  and  myself. 

The  form  of  the  declaration  is  in  case,  and  differs  from  that  used 
in  Bretherton  v.  Wood  [3  Brod.  B.  54],  in  this,  that  it  contains  no 
positive  averment  that  the  defendants  were  carriers;  whereas  in 
Bretherton  v.  Wood  there  was  an  averment  that  the  defendants  were 
proprietors  of  a  stagecoach,  for  the  carriage  and  conveyance  of  pas- 
sengers for  hire  from  Bury  to  Bolton.  The  present  declaration 
states  simply  that  the  plaintiff  delivered  to  the  defendants,  and  the 
defendants  received  from  the  plaintiff,  goods  to  be  carried  for  hire 
from  A  to  B.  It  is  therefore  consistent  with  the  defendants  being 
common  carriers,  or  being  hired  on  the  particular  occasion  only. 
Upon  the  trial  it  was  proved  satisfactorily  that  the  defendant 
against  whom  the  verdict  was  found  was  a  common  carrier;  and  it 
does  not  appear  to  have  been  objected,  at  that  time,  that  proof  of 
an  express  contract  between  the  plaintiff  and  the  defendants  was 
necessary  in  order  to  sustain  the  declaration.  If  such  proof  was  not 
necessary,  it  can  only  be  because  the  declaration  may  be  read  as 
founded  on  the  general  custom  of  the  realm ;  and,  if  it  mat/  be  so 
read,  the  court  after  verdict  must  so  read  it;  and  then  the  case  of 
Bretherton  v.  Wood  is  directly  in  point  in  favor  of  the  plaintiff. 

Upon  consideration  we  are  of  opinion  that  the  declaration  may  be 
so  read.  The  practice  appears  to  have  been  in  former  times  to  set 
out  the  custom  of  the  realm;  but  it  was  afterwards  very  properly 
held  to  be  unnecessary  so  to  do,  because  the  custom  of  the  realm  is 
the  law,  and  the  court  will  take  notice  of  it,  and  the  distinction  has 
for  many  years  prevailed  between  general  and  special  customs  in 
this  respect.     Afterwards  the  practice  appears  to  have  been  to  state 


408  CAKKIEKS   OF   GOODS. 

the  defendants  to  be  common  carriers  for  hire,  totidem,  verbis.  That, 
however,  was  departed  from  in  Brethertou  v.  Wood  to  a  consider- 
able extent,  and  certainly  still  farther  upon  the  present  occasion. 

It  may  be  that  the  present  declaration  could  not  have  been  sup- 
ported on  special  demurrer  for  want  of  some  such  averment ;  but  on 
this  point  we  are  not  called  upon  to  give  any  opinion.  It  does  not 
state  that  the  goods  were  delivered  to  the  defendants  at  their  special 
instance  and  request,  nor  contain  any  other  allegation  necessary 
applicable  to  any  express  contract  only,  or  even  pointing  to  any 
express  contract.  We  cannot,  therefore,  say  that  it  shows  the  action 
to  be  founded  on  contract;  and  it  is  sufficient  for  the  present  pur- 
pose, if  the  language  in  which  it  is  couched  is  consistent  with  its 
being  founded  on  the  general  custom  as  to  carriers. 

Taking  this  declaration,   therefore,  to  charge  the  defendants  as 

common  carriers,  it  follows  that  it  is  strictly  an  action  on  the  case 

for  a  tort,  and  that  one  of  several  defendants  may  be  found  guilty 

upon  it  according  to  the  doctrine  estaVdished  in  lU-etherton  v.  Wood. 

The  evidence  warrants  the  verdict  which  has  been  found,  and  n-e 

cannot  disturb  that  verdict.     We  purposely  abstain  from  giving  any 

opinion  whether  the   doctriiie   in  Govett  v.  Eadnidge  [3  East,  62] 

or   that   in   Powell  v.   Layton,   2   N.  R.  305,  be  the  true  doctrine, 

as  we  do  not  feel  ourselves   called  upon  to  decide  between  them, 

supposing  them  to  differ. 

The  rule  must  be  discharged. 

Bute  discharged. 


SMITH   V.    SEWAFvD. 

3  Penn.  St.  342.     1^4(]. 

Tfcis  was  an  action  on  the  case  for  the  loss  of  horses,  etc.,  in 
crossing  a  ferry.  The  plaintiff  declared  against  A.  Smitli,  as  owner 
and  occupier,  and  E.  Smith  being  in  his  employ  for  conducting  said 
ferry:  "for  that  they,  tlie  said  defendants,  respectively  ocoui>ying 
and  conducting  said  ferry,  offered  and  undertook,  in  consideration 
that  the  public,  and  those  desirous  of  travelling  across  said  river, 
should  be  conveyed  across  by  means  of  the  ferriage  of  said  defend- 
ants, and  for  liire  to  receive  and  safidy  to  convey  across  said  river, 
by  a  certain  ferryboat,  across,  etc.;  and  also  all  wagons,  etc.;  and, 
having  thus  offered  and  undertaken,  did  use,  occupy,  and  conduct 
said  ferry;  that  plaintiff  learning  said  defendants  did  so  use  and 
occupy,  and  had  offered  ajid  undertaken  saftdy  to  transport,  etc.," 
brought  certain  horses,  and  a  wagon  of  the  value,  etc.,  togetlicr  with 
goods  in  the  care  of  L.  0.  to  said  ferry.  That  said  horses,  etc., 
>>eing  on  said  track,  E.  Smith,  at  tl»o  instance,  and  in  the  employ  of 


REMEDIES   AS   AGAINST   CARRIER.  409 

A.  Smith,  did  agree  safely  to  receive  and  convey,  and  that  plaintiff, 
in  consideration  of  such  undertaking,  committed  said  property  to 
the  care  of  said  defendants.  That  defendants  contriving,  etc.,  did 
not  safely  convey,  but  through  their  carelessness  said  goods,  etc., 
were  thrown  into  the  river  and  lost. 

The  second  count  was  in  substance  the  same,  laying  a  general 
undertaking  by  defendants  to  convey.  The  plea  was  not  guilty. 
The  evidence  showed,  according  to  the  finding  of  the  jury,  though 
there  was  conflicting  testimony  whether  the  negligence  of  the 
wagoner  was  the  cause  of  the  accident,  that  there  was  no  fall-board 
at  the  end  of  the  flat  used  as  a  ferryboat,  and  it  being  insecurely 
fastened  to  the  shore,  the  wheels  of  the  wagon  striking  the  side  of 
the  boat,  as  it  was  being  driven  on  board  under  the  direction  of  the 
ferryman,  the  flat  was  shoved  from  the  shore,  and  the  horses  fell 
into  the  river  and  were  drowned,  the  harness  injured,  and  a  whip 
and  robe  lost. 

One  of  the  witnesses  called  by  plaintiff  to  prove  these  facts,  before 
any  evidence  of  negligence  was  given,  was  the  owner  of  the  goods 
in  the  wagon,  which  were  also  injured;  he  had  hired  the  horses  of 
the  plaintiff,  and  a  wagoner  to  haul  them;  to  his  deposition  an 
exception  was  taken. 

His  Honor  (Conyngham,P.  J.)  instructed  the  jury  that  the  action 
being  for  a  tort,  viz.,  negligence  of  defendants,  a  recovery  could  be 
had  against  either  of  the  defendants  if  the  evidence  justified  it,  the 
owner  of  the  ferry  being  bound  to  have  the  boat  and  fixtures  in 
proper  order;  but  as  the  only  ground  was  defect  in  the  fastenings, 
he  did  not  see  how  a  verdict  could  be  found  against  the  hired  man. 
That  a  ferryman  was  a  common  carrier,  and  was  responsible  for  all 
losses  except  those  occasioned  by  the  act  of  God,  inevitable  accident, 
or  the  public  enemies.  If  a  fastening  was  necessary,  he  was  bound  to 
have  it,  and  if  it  broke  he  was  liable  though  he  thought  it  sufficient. 

To  this  there  was  an  exception,  and  the  errors  assigned  were  to 
the  admission  of  the  testimony  excepted  to.  2d.  In  the  construc- 
tion that  a  verdict  could  pass  against  one  defendant.  4th.  The 
charge  as  to  the  extent  of  the  liability.  The  3d  was  for  not  arrest- 
ing the  judgment.  The  reasons  in  support  of  the  motion  were, 
1.  The  declaration  sounded  in  contract,  and  there  being  a  verdict 
in  favor  of  one  defendant,  no  judgment  could  be  entered.  2.  That 
no  sufficient  consideration  was  alleged. 

Butler  and  Wright,  for  plaintiffs  in  error.  The  declaration  is  in 
assumjjsit,  and  the  undertaking  and  agreement  of  the  defendant  are 
alleged  as  the  gravamen  of  the  action;  hence,  of  course,  both  or 
neither  defendants  are  liable.  That  this  is  so,  is  shown  from  the 
fact  that  no  single  requisite  to  a  declaration  in  contract  is 
wanting.   .  .  . 

Dana,  contra.  The  occupation  of  defendant  implied  a  general 
undertaking  and  obligation  to  keep  suitable  boats  and  fastenings. 


410  CARRIERS   OF   GOODS. 

the  failure  in  which  is  a  tort  or  violation  of  his  duty,  by  reason 
that  it  is  a  breach  of  his  undertaking;  and  it  was  long  doubted 
whether  a  verdict  could  pass  for  one  oiih/  in  a  suit  against  carriers. 
Here  the  misfeasance  was  distinctly  put  in  issue  and  canvassed  in 
the  court  below;  and  there  must  be  a  clear  violation  of  some  rule 
of  pleading  to  reverse  a  judgment  under  such  circumstances.  All 
actions  against  carriers  are  directly  on  the  contract  or  for  a  tort 
founded  in  fact  on,  or  deducible  from  a  contract,  for  wanton  injuries 
rarely  occur;  a  declaration  must  therefore  be  tinctured  with  con- 
tract. Church  V.  Munford,  11  Johns.  479;  Zell  v.  Arnold,  2  Penna. 
Rep.  292.  But  the  plea  cures  all  defects,  provided  there  be  a  tort 
averred  in  the  declaration;  Bac.  Abr.  3,  Pleas  G.  2;  and  the  aver- 
ment of  a  consideration  became  immaterial. 

2.  The  evidence  does  not  show  that  he  was  such  a  bailee  as  to  be 
liable  in  the  manner  now  contended  for,  and  if  he  was,  that  is 
waived  by  this  action. 

Gibson,  C.  J.  ......... 

The  motion  to  arrest  the  judgment  for  the  reason  that  the  verdict 
was  against  but  one  of  the  defendants,  was  properly  dismissed,  the 
declaration  being  for  a  tort,  which  is  both  joint  and  several.  It 
was  originally  the  practice  to  declare  against  a  carrier  only  on 
the  custom  of  the  realm;  but  it  has  long  been  established  that 
the  plaintiff  may  declare  in  case  or  assuyytjysit  at  his  election; 
and  it  is  usual  to  declare  in  the  latter,  as  was  done  in  jMcCahan  v. 
Hurst,  7  Watts,  175,  Todd  v.  Figley,  id.  524,  and  Hunt  v.  Wynn, 
C  Watts,  47.  Indeed,  his  right  to  do  so  seems  never  to  have  been 
questioned  l)y  the  English  courts.  On  the  contrary,  the  judges  in 
Powell  V.  Layton,  2  X.  R.  356,  and  Dale  r.  Hall,  1  Wils.  2S2, 
thought  that  the  declaration  is  essentially  founded  in  contract, 
though  the  word  susreplt  be  not  in  it.  In  I'owell  v.  Layton,  the 
defendant  was  allowed  to  jdead  the  non-joinder  of  his  partner  in 
abatement,  though  the  word  iluty  stood  in  place  of  the  word  /n'omise; 
in  which  the  court  seems  to  have  gone  very  far,  inasmuch  as  the 
plaintiff  may  certainly  waive  the  contract  and  go  for  a  tort.  There 
has  been  a  good  deal  of  wavering  on  the  subject,  not  only  as  to  the 
proper  remedy,  but  as  to  the  distinctive  feature  of  the  deolaration. 
In  regard  to  the  latter,  Corbett  v.  Piifkington,  G  liarn.  ^.^  Cres.  20S, 
has  put  the  law  of  the  subject  on  satisfactory  ground,  by  making  the 
presence  or  absence  of  an  averment,  not  of  promise  only,  but  of  con- 
sideration also,  the  criterion;  for  it  is  impossible  to  conceive  of  a 
I»ronjis<*  without  consideration,  any  more  tlian  a  consideration  with- 
out promise,  as  an  available  cause  of  action;  and  when  a  considera- 
tion is  not  laid,  the  word  ufjrced,  or  utidfrtnok,  or  even  the  more 
formal  word,  promised,  must  be  treated  as  no  more  than  inducement 
tf>  the  duty  imposed  by  tlie  common  law.  Now  no  consideration  is 
laid  in  the  count  b<'fore  us.  The  und<'rtaking  of  tlie  defendants  to 
safely  pass  the  team,  is  stated  to  be  the  consideration  which  moved 


REMEDIES   AS   AGAINST   CARRIER.  411 

the  wagoner  to  commit  it  to  their  care;  but  no  consideration  is  stated 
for  anything  else:  certainly,  none  for  the  defendant's  undertaking. 
As  the  declaration,  therefore,  is  decisively  in  case,  the  verdict 
against  one  of  the  defendants  and  for  the  other  is  consequently 
good. 

Judgment  affirmed. 


c.    Burden  of  Proof  . 

TRANSPORTATION  CO.    v.   DOWNER. 

11  Wall.  (U.  S.)  129.     1870. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  North- 
ern District  of  Illinois. 

This  case  was  an  action  against  the  Western  Transportation  Com- 
pany to  recover  damages  sustained  by  the  plaintiff  from  the  loss  of 
eighty-four  bags  of  coffee  belonging  to  him  which  the  company  had 
undertaken  to  transport  from  New  York  to  Chicago.  The  company 
was  a  common  carrier,  and,  in  the  course  of  the  transportation,  had 
shipped  the  coffee  on  board  of  the  propeller  "Buffalo,"  one  of  its 
steamers  on  the  lakes.  The  testimony  showed  that  the  steamer 
was  seaworthy,  and  properly  equipped,  and  was  under  the  command 
of  a  competent  and  experienced  master;  but  on  entering  the  harbor 
of  Chicago  in  the  evening,  she  touched  the  bottom,  and  not  answer- 
ing her  helm,  got  aground,  and  during  the  night  which  followed, 
kept  pounding,  and  thus  caused  the  hold  to  fill  with  water.  The 
result  was,  that  the  coffee  on  board  was  so  damaged  as  to  be 
worthless. 

The  bill  of  lading  given  to  the  plaintiff  by  the  transportation  com- 
pany at  New  York  exempted  the  company  from  liability  for  losses 
on  goods  insured  and  losses  occasioned  by  the  "  dangers  of  navigation 
on  the  lakes  and  rivers."  The  defence  made  in  the  case  was,  that 
the  loss  of  the  coffee  came  within  this  last  exception. 

Upon  the  trial  the  plaintiff  having  shown  that  the  defendant  had 
the  coffee  for  transportation,  and  that  the  same  was  lost,  the  defend- 
ant then  showed  by  competent  evidence  that  the  loss  was  occasioned 
in  manner  above  stated,  —that  is,  by  one  of  the  "dangers  of  lake 
navigation."  The  plaintiff  then  endeavored  to  prove  that  this  dan- 
ger and  the  consequent  loss  might  have  been  avoided  by  the  exercise 
of  proper  care  and  skill.  The  defendant  moved  the  court  to  instruct 
the  jury  as  follows :  — 

"If  the  jury  believed  from  the  evidence  that  the  loss  of  the  coffee 
in  controversy  was  within  one  of  the  exceptions  contained  in  the  bill 


412  CARRIERS   OF    GOODS. 

of  lading  offered  in  evidence,  that  is  to  say,  if  it  was  occasioned  by 
perils  of  navigation  of  the  lakes  and  rivers,  then  the  burden  of 
showing  that  this  loss  might  have  been  avoided  by  the  exercise 
of  proper  care  and  skill  is  upon  the  plaintiff;  then  it  is  for  him  to 
show  that  the  loss  was  the  result  of  negligence." 

The  court  refused'  to  give  this  instruction  and  the  defendant  ex- 
cepted, and  at  the  request  of  the  plaintiff,  gave  instead  the  follow- 
ing, to  the  giving  of  wliich  the  defendant  also  excepted,  viz. :  — 

"The  bill  of  lading  in  this  case  excepts  the  defendant  from  liabil- 
ity, when  the  property  is  not  insured,  from  perils  of  navigation.  It 
is  incumbent  on  the  defendant  to  bring  itself  within  the  exception, 
and  it  is  the  duty  of  the  defendant  to  show  that  it  has  not  been 
guilty  of  negligence." 

The  plaintiff  recovered,  and  the  defendant  brought  the  case  here 
on  writ  of  error. 

Mr,  Justice  Field.  On  the  trial  the  plaintiff  made  out  a  pi'ima 
facie  case  by  producing  the  bill  of  lading,  showing  the  receipt  of  the 
coffee  by  the  company  at  New  York,  and  the  contract  for  its  trans- 
portation to  Chicago,  and  by  proving  the  arrival  of  the  coffee  at  the 
latter  place  in  the  propeller  "  Brooklyn  "  in  a  ruined  condition,  and  the 
consequent  damages  sustained.  The  company  met  this  ^jru/ia  fucle 
case  by  showing  that  the  loss  was  occasioned  by  one  of  the  dangers 
of  lake  navigation.  These  terms,  "dangers  of  lake  navigation," 
include  all  the  ordinary  perils  which  attend  navigation  on  the  lakes, 
and  among  others,  that  which  arises  from  shallowness  of  the  waters 
at  the  entrance  of  harbors  formed  from  them.  The  plaintiff  then 
introduced  testimony  to  show  that  this  danger,  and  the  consequent 
loss,  might  have  been  avoided  by  the  exercise  of  jjrojier  care  and 
skill  on  the  part  of  the  defendant.  If  the  danger  might  have  been 
thus  avoided,  it  is  plain  that  the  loss  should  be  attributed  to  the 
negligence  and  inattention  of  the  company,  and  it  should  be  held 
liable,  notwithstanding  tiie  exception  in  the  l)ill  of  lading.  The 
Imrden  of  establishing  such  negligence  and  inattention  rested  with 
tlie  plaintiff,  but  the  court  refused  an  instruction  to  the  jury  to  that 
effect,  prayed  by  the  defendant,  and  instructed  them  that  it  was  the 
duty  of  the  defendant  to  show  that  it  had  not  been  guilty  of  negli- 
gence.    In   this   respect   the   court  erred.*     In   Clark  /•.  I'arnwell,' 

1  The  pluintifT  further  contends,  "  that  when  n  risk,  fur  wliich  a  common  carrier 
may  Iw  li;ibh>,  i«  limited  hy  a  .spcial  contract,  the  burden  of  jiroof  rests  upon  the 
carrier  to  hIiow  not  only  that  the  cause  of  the  loss  wa,s  within  the  terms  of  the  limita- 
tion, biit  alno  \i\tou  its  own  part  that  there  was  no  nepli^enco."  In  this  wo  do  not 
n-^rv  with  him.  It  i»  well  seltlcd  that  when  the  liahiiity  of  the  common  carrier  is 
limited  \,y  a  special  contract,  the  carrier  is  only  liable  for  losses  and  damages  caused 
by  liiM  own  ne(;li({ence,  and  the  burden  of  provinp;  the  negliKcnco  is  on  the  party  who 
nll'KeH  it  St«-an)b<)at  Kmily  V.  f'nrney,  5  Kas.  (J-J.'i ;  Mo.  I'ac.  Illy.  Co.  v.  Haley,  '.'5 
id.  3fl  ;  Sherman  and  Hedfield  on  Ne;,'iiv'ence,  §  12;  Whitworth  v.  Krie  Hly.  Co.,  87 
N.  Y.  41.3.      per  llurd,  J.,  in  Kilfv.  Atchiaon,  &c.  U.  Co.,  a2  Kan.  203. 

»  12  Howard,  272. 


REMEDIES   AS    AGAINST   CARKIER.  413 

the  precise  point  was  involved,  and  the  decision  of  the  court  in  that 
case  is  decisive  of  the  question  in  this.  And  that  decision  rests  on 
principle.  A  peril  of  navigation  having  been  shown  to  exist,  and  to 
have  occasioned  the  loss  which  is  the  subject  of  complaint,  the 
defendant  was  prima  facie  relieved  from  liability,  for  the  loss  was 
thus  brought  within  the  exceptions  of  the  bill  of  lading.  There  was 
no  presumption,  from  the  simple  fact  of  a  loss  occurring  in  this  way, 
that  there  was  any  negligence  on  the  part  of  the  company.  A  pre- 
sumption of  negligence  from  the  simple  occurrence  of  an  accident 
seldom  arises,  except  where  the  accident  proceeds  from  an  act  of  such 
a  character  that,  when  due  care  is  taken  in  its  performance,  no 
injury  ordinarily  ensues  from  it  in  similar  cases,  or  where  it  is 
caused  by  the  mismanagement  or  misconstruction  of  a  thing  over 
which  the  defendant  has  immediate  control,  and  for  the  management 
or  construction  of  which  he  is  responsible.  Thus,  in  Scott  v.  The 
London  and  St.  Catharine  Dock  Company,^  the  plaintiff  was  injured 
by  bags  of  sugar  falling  from  a  crane  in  which  they  were  lowered  to 
the  ground  from  a  warehouse  by  the  defendant,  and  the  court  said, 
"There  must  be  reasonable  evidence  of  negligence;  but  where  the 
thing  is  shown  to  be  under  the  management  of  the  defendant  or  his 
servants,  and  the  accident  is  such  as  in  the  ordinary  course  of  things 
does  not  happen  if  those  who  have  the  management  use  proper  care, 
it  affords  reasonable  evidence,  in  the  absence  of  explanation  by  the 
defendant,  that  the  accident  arose  from  want  of  care." 

So  in  Curtis  v.  The  Rochester  and  Syracuse  Railroad  Company,  ^ 
the  Court  of  Appeals  of  New  York  held  that  the  mere  fact  that 
a  passenger  on  a  railroad  car  was  injured  by  the  train  running  off  a 
switch  was  not  of  itself,  without  proof  of  the  circumstances  under 
which  the  accident  occurred,  presumptive  evidence  of  negligence  on 
the  part  of  the  company.  The  court  said  that  carriers  of  passengers 
were  not  insurers,  and  that  many  injuries  might  occur  to  those  they 
transported  for  which  they  were  not  responsible;  but  as  railroad 
companies  were  bound  to  keep  their  roads,  carriages,  and  all  appara- 
tus employed  in  working  them,  free  from  any  defect  which  the 
utmost  knowledge,  skill,  and  vigilance  could  discover  or  prevent,  if 
it  appeared  that  an  accident  was  caused  by  any  deficiency  in  the 
road  itself,  the  cars,  or  any  portion  of  the  apparatus  belonging  to  the 
company  and  used  in  connection  with  its  business,  a  presumption  of 
negligence  on  the  part  of  those  whose  duty  it  was  to  see  that  every- 
thing was  in  order  immediately  arose,  it  being  extremely  unlikely 
that  any  defect  should  exist  of  so  hidden  a  nature  that  no  degree  of 
skill  or  care  could  have  seen  or  discovered  it. 

It  is  plain  that  the  grounds  stated  in  these  cases,  upon  which  a 
presumption  of  negligence  arises  when  an  accident  has  occurred, 
have  no  application  to  the  case  at  bar.  The  grounding  of  the  pro- 
peller and  the  consequent  loss  of  the  coffee  may  have  been  consistent 

1  3  Hurlstone  &  Coltman,  596.  ^  13  Xew  York,  543. 


414  CARRIERS   OF   GOODS. 

with  the  highest  care  and  skill  of  the  master,  or  it  may  have  resulted 
from  his  uegligeuce  and  inattention.  The  accident  itself,  irrespec- 
tive of  the  circumstances,  furnished  no  ground  for  any  presumption 
one  way  or  the  other.  If,  therefore,  the  establishment  of  the  neg- 
ligence of  the  defendant  was  material  to  the  recovery,  the  burden  of 
proof  rested  upon  the  plaintiff. 

For  the  error  in  the  refusal  of  the  instruction  prayed,  and  in  the 
instruction  given,  the  judgment  must  be  reversed,  and  the  cause 
remanded  for  a  new  trial. 


SHRIVER  V.    SIOUX   CITY  «S:   ST.    PAUL   E.  CO. 

24  Minn.  506.     1878. 

Appeal  by  defendant  from  a  judgment  of  the  District  Court  for 
Nobles  County. 

GiLFiLLAx,  C.  J.  At  Tiffin,  Ohio,  the  plaintiff  shipped  with  the 
Baltimore  &  Ohio  Railroad  Company  two  marble  slabs,  packed  in  a 
close  box,  consigned  to  herself  at  Worthington,  in  this  State,  and 
upon  the  requirement  of  the  company  executed  an  agreement  releas- 
ing the  company,  and  each  and  every  other  company  over  whose  line 
the  goods  might  pass  to  their  destination,  from  any  and  all  damages 
that  might  arise  from  certain  specified  causes,  and  "from  any  cause 
not  arising  from  gross  negligence  of  the  said  company  or  companies, 
its  or  their  officers  or  agents."  The  slabs  passed  to  their  destination 
over  the  Baltimore  &  Ohio,  and  two  other  railroads,  to  St.  James, 
in  this  State,  and  over  tlie  road  of  the  defendant  from  St.  James  to 
"Wortinngton,  and  wlien  delivered  by  the  defendant  to  the  phiintiff, 
at  Worthington,  were  found  to  have  been  broken.  This  action  was 
brouglit  to  recover  damages  for  the  injury. 

At  the  trial  an  objection  was  made  to  a  question  to  a  witness 
accustomed  to  ])acking  marbles  for  transportation,  calling  for  his 
opinion  upon  whether  these  marbles  were  jjroperly  packed.  It  was 
a  case  for  expert  testimony,  and  the  objection  was  properly 
overruled. 

The  court  charged  the  jury,  in  substance,  that  common  carriers  of 
goods  cannot,  by  ccjiitract,  absolve  themselves  from  the  consoquences 
of  their  own  negligence,  and  that,  the  contract  ])roved,  could  not  be 
allowed  to  have  that  operation;  that  the  burden  of  jiroof  to  show 
ordinary  care  was  on  the  defendant,  and  that  the  jury  might  jiresume 
negligence  from  the  fact  that  the  goods  were  found  to  be  damaged 
when  d(divered  to  jilaintiff  at  Worthington. 

Defendant  excejited  to  these  jtrojiositions  in  the  charge,  and  re- 
quested an  instruction  that  the  contract  was  reasonable,  and  that  the 
plaintiff  could  not  recover  without  gross  negligence  of  the  defendant, 


EEMEDIES   AS   AGAINST   CAERIEK.  415 

which  the  court  declined.  Defendant  also  requested  an  instruction 
that  if  the  marble  was  so  improperly  packed  by  the  plaintiff  that  it 
could  not  be  bandied  with  reasonable  care  in  the  transportation 
without  injury  thereto,  the  plaintiff  cannot  recover.  The  court  gave 
this  instruction  with  the  qualification,  "  unless  the  injury  happened 
independent  of  the  defects  in  the  packing."  To  this  defendant 
excepted.  The  qualification  was  correct,  for  while  plaintiff  could 
not  recover  for  an  injury  to  which  her  negligence  contributed,  no 
negligence  of  hers  unconnected  with  the  cause  of  the  injury  could 
defeat  a  recovery. 

The  charge  presents  the  question  of  the  power  of  a  common  carrier 
of  goods  to  limit  by  contract  his  liability  as  it  existed  at  common 
law.  It  is,  perhaps,  to  be  regretted  that  courts  have  allowed  any 
relaxation  of  the  common-law  rule  of  liability.  But  that  a  common 
carrier  may  by  special  agreement  qualify  to  some  extent  his  liability 
is  too  well  settled  by  decisions  to  be  denied.  How  far  he  may  do  it 
the  authorities  are  not  entirely  agreed.  The  greater  number  of 
authorities  in  the  United  States  hold,  and,  since  Christenson  v. 
American  Express  Co.,  15  Minn.  270,  it  is  to  be  taken  as  the  settled 
doctrine  of  this  court,  that  a  common  carrier  of  goods  shall  not  be 
permitted  to  exonerate  himself  by  contract  from  liability  for  his 
own  negligence,  or  the  negligence  of  the  agents  whom  he  employs  to 
perform  the  transportation.  The  contract  in  question  seeks  to 
exonerate  the  carrier  from  liability  for  all  except  gross  negligence, 
and  is  obnoxious  to  the  rule.  The  charge  of  the  court  upon  it,  and 
upon  the  rule,  was  correct. 

When  there  is  a  contract  limiting  the  liability  to  injuries  caused 
by  the  negligence  of  the  carrier,  which  party,  the  owner  or  the  car- 
rier, must  show  from  what  cause  the  injury  or  loss  arose,  is  a  ques- 
tion upon  which  there  is  some  conflict  of  authorities.  Harris  v. 
Packwood,  3  Taunt.  264  [164];  Marsh  v.  Home,  o  B.  &  C.  322; 
French  v.  Buffalo,  N.  Y.  &  E.  R.  Co.,  43  N.  Y.  108;  Sager  v.  S.  & 
P.  &  E.  Pv.  Co.,  31  Me.  228,  and  Kallman  v.  United  States  Express 
Co.,  3  Kan.  205,  affirm  the  rule,  without  giving  any  reason  for  it,  to 
be  that  the  burden  is  on  the  owner.  On  the  other  hand,  in  2  Greenl. 
Ev.  §  219,  the  rule  is  stated,  "and  if  the  acceptance  of  the  goods 
were  special,  the  burden  of  proof  is  still  on  the  carrier  to  show  not 
only  that  the  cause  of  the  loss  was  within  the  terms  of  the  exception, 
but  also  that  there  was  on  his  part  no  negligence  or  want  of  due 
care."  And  this  rule  is  followed  in  Swindler  v.  Hillard,  2  Rich. 
(S.  C.)  286;  Baker  v.  Brinson,  9  Rich.  201;  Davidson  v.  Graham, 
2  Ohio  St.  131;  Graham  v.  Davis,  4  Ohio  St.  362;  and  Whitesides 
V.  Russell,  8  W.  &  S.  44.  The  latter  cases  are  most  consistent  with 
principle ;  for,  where  there  is  no  contract,  there  has  never,  so  far  as 
we  know,  been  any  question  that  the  carrier,  to  escape  liability, 
must  show  the  case  to  have  occurred  from  one  of  the  causes  which 
the  law  excepts  from  his  liability.    Xo  good  reason  can  be  given  why 


416  CARRIERS    OF    GOODS. 

the  burden  should  be  changed  because  he  has  by  contract  added  other 
exceptions  to  those  made  by  the  hiw.  As  to  where  the  burden  of 
proof  was,  the  charge  was  correct. 

There  was  some  evidence  from  which  the  jury  might  find  that  when 
delivered  to  the  B.  &  0.  R.  Co.,  the  slabs  were  in  good  condition. 
Between  that  company  and  the  defendant  there  were  two  interme- 
diate carriers.  There  was  no  direct  evidence  showing  upon  what 
part  of  the  line,  composed  of  the  four  railroads,  or  in  the  hands  of 
which  of  the  four  carriers,  the  slabs  were  broken ;  and  there  was  noth- 
ing to  charge  the  breaking  upon  the  defendant,  unless  the  jury  might 
presume  that  the  slabs  continued,  until  they  came  into  the  hands  of 
defendant,  in  the  same  condition  as  when  delivered  to  the  B.  &  0. 
R.  Co.  That,  where  goods  pass  over  a  line  of  several  different  car- 
riers, the  jury,  there  being  no  direct  evidence  to  the  contrary,  may 
presume  that  they  reached  the  last  carrier  in  the  same  condition  as 
when  delivered  to  the  first,  as  discussed  at  length,  and  affirmed,  in 
Smith  V.  The  New  York  Central  R.  Co.,  43  Barb.  225,  and  Laughlin 
V.  The  Chicago  &  Northwestern  R.  Co.,  28  Wis.  204,  — the  only  cases 
we  find  in  which  the  point  is  considered.  Although  the  question  is 
not  free  from  doubt,  we  think  the  conclusion  reached  by  the  courts 
in  these  two  cases  correct.  It  is  a  rule  of  evidence  that  things  once 
proved  to  have  existed  in  a  particular  state  are  presumed  to  have 
continued  in  that  state  until  the  contrary  is  shown ;  but  it  is  not  a 
rule  of  universal  api)lication.  The  probabilities  in  a  particular  case 
may  prevent  its  application.  The  courts  in  New  York  and  AViscon- 
sin,  there  being  nothing  in  the  case  to  render  the  presumption  improb- 
able, apply  it  to  a  case  like  this,  mainly  because  the  carrier  may 
ordinarily  know,  while  ordinarily  the  owner  cannot  know,  what 
happens  to  the  goods,  and  what  care  is  taken  of  them  in  tlieir  pas- 
sage, and  if  they  are  lost  or  injured,  when  and  how  it  occurred,  and 
in  what  condition  they  came  from  the  hands  of  a  prior  carrier  into 
his.  It  is  in  part  because  of  his  superior  ability  to  furnish  the  proof 
that  the  07ius  of  showing  the  cause  of  a  loss  or  injury  to  be  within 
the  exceptions  to  his  liability  is  imposed  on  the  carrier.  For  the 
same  rea-son  we  think  that  onlinarily  a  subsequent  carrier  should  be 
required  to  show  in  what  condition  goods  came  into  his  hands,  or 
that  their  condition  did  not  change  while  they  were  in  keeping. 
The  rule  may  seem  hard,  and  so  may  seem  the  rule  regulating  the 
liability  of  tlie  carrier,  and  fixing  the  Imrden  of  jtruof  on  him;  but 
public  policy,  and  the  due  protection  of  owners,  require  tliat  common 
carriers  should  be  held  to  a  severe  liability. 

J udjiiittU  (ilJiVinCil. 


REMEDIES   AS   AGAINST   CARRIER.  417 


MAKQUETTE,    HOUGHTON   &   ONTONAGON   E.  CO.  v. 
P.  KIRKWOOD. 

45  Mich.  51.     1880. 

Case.     Defendants  bring  error.     Reversed. 

Campbell,  J.  Defendants  in  error  sued  plaintiffs  in  error  and 
recovered  damages  for  breakage  of  two  marble  soda  fountains,  taken 
by  the  railroad  agents  at  Marquette  and  carried,  one  to  Negaunee, 
and  one  to  Ishpeming.  The  fountains  were  packed  in  New  York 
and  forwarded  by  the  New  York  Central  Railroad,  and  by  that  com- 
pany, as  is  claimed,  turned  over  at  Buffalo  to  the  Lake  Superior 
Transit  Company,  which  is  a  connecting  line.  The  Transit  Com- 
pany delivered  the  property  at  Marquette  to  the  plaintiff  in  error, 
with  which  it  had  no  business  arrangements,  but  which  was  the 
proper  carrier  from  Marquette  to  the  destination  of  the  articles. 
The  boxes  which  were  marked  to  be  handled  with  care  were  then 
apparently  sound,  except  that  a  handle  of  one,  consisting  of  a  strip 
of  board,  was  injured.  Each  box,  when  opened  at  its  destination, 
was  found  to  contain  a  fountain  of  which  some  of  the  marble  was 
broken. 

The  testimony  for  plaintiffs,  as  well  as  that  for  defendants,  indi- 
cates that  there  was  no  appearance  in  either  package  which  would 
indicate  damages  at  any  time,  except  the  broken  handle.  There 
was  no  evidence  of  neglect  on  the  part  of  the  railroad  company,  and 
there  was  affirmative  evidence  to  the  contrary.  It  was  conceded  that 
the  railroad  company  had  no  means  of  inspecting  the  property. 
Under  these  circumstances  the  Circuit  Court  told  the  jury  that  if  the 
goods  were  delivered  in  New  York  in  good  order  to  the  first  carrier, 
they  would  have  a  right  to  infer  that  they  continued  so  when  received 
by  defendants  below,  unless  evidence  was  given  which  showed  the 
contrary.  The  court  also  told  the  jury  that  if  they  found  it  neces- 
sary to  consider  the  testimony  given  by  the  agents  and  employees 
of  the  railroad,  they  should  bear  in  mind  the  interest  they  have  in 
protecting  their  company  and  shielding  themselves  from  blame.  In 
doing  this  a  very  similar  statement  was  made  concerning  the  testi- 
mony of  the  packers  in  New  York. 

While  there  may  appear  on  the  trial  on  direct  or  cross-examination 
such  bias  or  behavior  as  would  authorize  comment  by  counsel  to  the 
jury,  we  think  it  is  not  within  the  province  of  a  court  to  instruct  a 
jury,  or  suggest  to  them,  that  any  suspicion  attaches  to  the  testi- 
mony of  agents  or  servants  of  a  corporation  or  individual  by  reason 
of  their  employment,  or  that  they  have  any  such  interest  as  requires 
them  to  be  dealt  with  differently  from  other  witnesses.     Even  inter- 

27 


418  CARRIERS   OF   GOODS. 

ested  witnesses  are  now  let  in  by  statute,  and  the  policy  pointed  out 
by  the  statute  indicates  that  the  old  presumption  that  interest  will 
necessarily  or  probably  lead  to  falsehood,  was  unjust  and  untrue. 
But  none  of  these  witnesses  could  have  been  excluded  under  the 
most  rigid  common-law  rules;  and  whatever  license  of  criticism  may 
be  allowed  to  counsel,  it  was  not,  we  think,  legally  justifiable  to 
invite  the  jury  to  look  upon  such  testimony  with  disfavor.  There 
is  no  legal  presumption  against  it. 

Upon  the  other  question  we  think  that  the  ruling  was  also  wrong. 
The  case  comes  directly  within  the  principle  laid  down  by  this 
court  iu  M.,  H.  &  0.  R.  R.  r.  Langton,  32  i\Iich.  251,  where  it  was 
sought  to  hold  these  same  parties  responsible  for  delivering  hay  in  a 
damaged  condition,  by  showing  that  it  was  in  good  condition  when 
delivered  to  a  previous  carrier  at  Sheboygan.  In  that  case,  as  in 
this,  the  court  below  held  that  such  a  showing  shifted  the  burden  of 
proof  upon  the  railroad  company,  and  he  held  that  this  was  error, 
and  that  the  plaintiti  was  bound  to  show  affirmatively  that  the  hay 
was  delivered  in  good  order  at  Marquette  to  the  railroad. 

We  think  this  rule  is  just,  and  are  not  at  all  disposed  to  depart 
from  it.  A  carrier  has  no  means  in  a  case  like  this  of  opening  pack- 
ages and  examining  their  contents.  Unless  there  is  some  outward 
token  which  is  suspicious,  he  may  and  must  take  the  articles  and 
forward  them  on  the  usual  terms.  He  is  bound  in  law  to  deliver 
them  in  the  condition  in  which  he  receives  them.  But  there  can  be 
no  further  responsibility;  and  any  rule  of  law  which  would  make 
him  responsible  actually  or  presumjitively  for  the  conduct  of  i)re- 
vious  independent  carriers,  would  be  grossly  unfair,  and  subject 
him  to  losses  against  which  he  could  have  no  protection.  He  has 
iKithing  to  do  with  any  of  the  previous  dealings  with  the  property, 
and  no  means  of  informing  himself  about  them.  We  cannot  see  how 
this  case  is  different  from  what  it  would  have  been  if  the  jilaintiffs 
themselves  had  delivered  the  boxes  to  the  comjiany  at  Marquette. 
In  law  the  Transit  Company  acted  merely  as  plaintiffs'  agent  in  turn- 
ing them  over,  and  cannot  be  treated  as  representing  the  IMarquette 
Railroad  Company  for  any  purpose  without  reversing  the  whole 
order  of  business.      Fitch  v.  Newberry,  1  Doug.  (Midi.)  1. 

In  view  of  our  Y)revious  decision  we  should  not  feel  justified  in 
going  into  this  question  at  all,  if  it  did  not  seem  to  be  imagined  that 
if  tlie  case  of  Laughlin  v.  Railway,  28  Wis.  204,  had  been  fully 
called  to  our  attention  it  might  havf  clianged  our  views.  The  other 
cases  cited  on  tlie  argument,  except  one  from  North  Carolina  follow- 
ing it,  do  not  have  any  ])articular  bearing.  In  that  case  the  court, 
treating  it  as  a  question  not  directly  covered  by  previous  precedents, 
hold  that  it  would  be  more  convenient  and  less  onerous  to  the  owners 
of  goods  to  adopt  such  a  rule  as  is  contended  for  by  the  jilaintilTs 
bflow.  The  only  ground  discovered  for  it  was  the  presumi)tion  that 
things  remain  as  they  once  have  been  shown  to  exist.     The  cases 


REMEDIES    AS   AGAINST   CARRIER.  419 

cited  as  resting  on  that  presumption  were  not  at  all  in  point  except 
by  some  assumed  analogy. 

We  certainly  have  the  highest  respect  for  the  decisions  of  the 
court  which  so  decided.  But  we  cannot  convince  ourselves  that  the 
decision  is  well  founded  on  legal  analogies,  or  correct  in  principle. 

The  presumption  that  things  remain  unchanged  applies  in  such  a 
case  as  the  present  just  as  forcibly  backward  as  forward.  It  may 
quite  as  reasonably  be  presumed  that  the  goods  were  delivered  at 
Negaunee  and  Ishpeming  in  the  condition  in  which  they  were 
received  at  Marquette,  as  that  they  came  to  Marquette  as  they  left 
New  York.  The  goods  were  certainly  damaged  when  they  reached 
their  destination.  To  assume  that  they  were  damaged  after  they 
left  Marquette,  and  not  on  any  of  their  previous  removals,  is  to 
make  a  very  arbitrary  assumption  which  has  no  more  foundation  in 
probability  than  any  other.  If  it  were  worth  while  to  enlarge  on 
what  is  confessedly  a  presumption  not  resting  on  any  sure  foundation 
in  experience,  it  might  very  well  be  questioned  whether  such  a  pre- 
sumption is  admissible  at  all  as  applied  to  things  the  position  of 
which  does  not  remain  either  fixed  in  place  or  free  from  disturbance 
by  human  agencies.  But  we  need  not  enlarge  on  this  because  the 
nature  of  the  suit  itself  raises  different  presumptions  which  are  well 
recognized. 

This  suit  is  based  on  the  negligence  of  the  carrier.  It  can  only  be 
maintained  on  the  theory  that  the  carrier  or  its  servants  did  not 
properly  care  for  or  handle  the  goods.  There  is  no  rule  better 
established  or  more  righteous  than  the  rule  that  any  one  who  claims 
a  right  to  damages  for  negligence  must  prove  it.  The  presumption 
that  a  party  sued  has  done  no  wrong  must  prevail  till  Avrong  is 
shown.  A  carrier's  obligation  to  carry  safely  what  he  received 
safely  is  independent  of  care  or  negligence.  But  in  the  absence  of 
proof  that  there  was  property  delivered  to  him,  or  safely  delivered 
to  him,  any  presumption  that  he  received  it  is  one  which  goes  beyond 
and  behind  the  duty  of  a  carrier  and  enters  into  the  origin  and 
making  of  the  contract.  Until  such  property  comes  into  his  hands 
there  is  nothing  for  a  contract  to  act  upon,  and  the  contract  is  not 
proved  until  that  is  proved. 

In  a  somewhat  similar  case.  Muddle  v.  Stride,  9  C.  &  P.  380,  Lord 
Denman  told  the  jury  that  if  it  were  left  in  doubt  what  the  cause  of 
damages  was,  the  defendants  were  entitled  to  their  verdict,  "  because 
you  are  to  see  clearly  that  they  were  guilty  of  negligence  before  you 
can  find  your  verdict  against  them.  If  it  turns  out,  in  the  consider- 
ation of  the  case,  that  the  injury  may  as  well  be  attributable  to  the 
one  cause  as  the  other,  then  also  the  defendants  will  not  be  liable  for 
negligence." 

In  Gilbert  v.  Dale,  5  Ad.  &  El.  543,  the  same  rule  was  laid  down,       < 
and  it  was  held  that  there  could  be  no  recovery  without  proof,  and 
that  the  presumption  could  not  be  raised  without  foundation.     And 


420  CAKRIERS    OF    GOODS. 

in  Midland  Railway  v.  Bromley,  17  ^.  B.  372,  the  same  principle 
was  affirmed,  and  it  was  held  that  if  the  evidence  was  as  consistent 
with  the  claim  of  one  side  as  with  that  of  the  otlier,  the  plaintiff 
must  fail,  because  he  must  make  his  proof  preponderate. 

There  is  no  reason  for  presuming  that  the  Marquette  Railroad  did 
the  mischief,  that  would  not  arise  with  equal  force,  according  to  the 
Wisconsin  decision,  against  either  of  the  previous  carriers  had  they 
been  sued  instead.  Had  the  tirst  carrier  been  sued,  it  would  unques- 
tionably have  been  bound  to  show  a  safe  transit,  because  that  carrier 
received  the  articles  in  actual  good  order.  A  presumption  that  has 
no  better  foundation,  and  that  applies  to  one  as  readily  as  to 
another,  ought  not  to  prevail  to  raise  a  further  presumption  of  negli- 
gence without  proof. 

The  judgment  must  be  reversed  with  costs  and  a  new  trial  granted. 


MOXTGO:MEEY   &    EUFAVLA   R.    CO.    v.    CULVER. 

75  Ala.  578.     1884. 

Cloptox,  J.  .  .  .  The  plaintiff,  in  April,  188.3,  procured  from  the 
Mobile  &  Girard  Railroad  Company  through  tickets  for  the  trans- 
portation of  himself  and  members  of  his  family,  and  through  checks 
for  the  transportation  of  his  baggage  from  Columbus,  Georgia,  to 
Birmingliam,  Alabama,  over  the  respective  roads  of  tlie  Mobile  & 
Girard  Railroad  Company,  of  the  defendant,  and  of  the  South  and 
North  Alabama  Railroad  Company,  which  were  connecting  lines,  the 
defendant's  being  the  intermediate  road.  When  the  baggage  reached 
Union  Springs,  the  place  at  wliich  the  road  of  defendant  connects 
with  the  road  of  the  Mobile  &  Girard  Comjiany,  it  was  in  good 
condition;  but  when  it  was  delivered  to  tlie  plaintiff  at  Birmingham, 
one  of  the  trunks  had.  been  broken,  and  the  contents  abstracted. 
On  these  facts,  the  court  instructed  the  jury,  if  the  trunk  was  deliv- 
ered to  and  received  by  tlic  defendant  in  good  order,  and  when  it 
was  delivered  to  the  plaintiff  at  liirmingham,  it  was  badly  broken 
and  its  contents  taken  out,  it  devolved  on  the  defendants  to  show 
that  it  was  delivered  in  good  condition  to  the  South  and  North  Ala- 
bama liailroad  C«)nii)any;  and  if  it  failed  to  show  tliis,  the  ])laintiff 
is  entitled  to  recover.  There  was  no  evidence,  other  than  tlie  trunk 
was  in  good  order  at  Union  Springs,  showing  when  or  where  it  was 
damaged,  or  what  was  its  condition  when  delivered  by  the  defendant 
at  Montgomery  to  tlie  South  and  North  Alabama  Railroad  Company. 
The  instructiftn  i»res«'j»ts  the  direct  (piestion:  Where  baggage,  for 
the  transportation  of  which  over  three  connecting  roads,  operated 
by  separate  and  independent  companifs.  tlunuL'li  clicrks  have  been 


EEMEDIES   AS   AGAINST   CARRIER.  421 

issued  by  one  of  the  terminal  roads,  is  found  damaged  when  delivered 
at  the  place  of  destination  by  the  other  terminal  road,  does  the 
burden  of  proof,  in  the  absence  of  any  special  contract  or  arrange- 
ment between  the  companies,  rest  on  the  intermediate  road  to  show 
not  only  a  delivery  to  the  connecting  terminal  road,  but  also  that 
the  baggage  was  in  good  condition  when  so  delivered,  it  being  shown 
to  have  been  in  good  order  when  received  by  the  intermediate  road? 

While  the  transportation  of  baggage,  as  such,  is  incidental  to  the 
carriage  of  the  owner  as  a  passenger,  and  while  the  railroad  com- 
panies are  only  responsible  to  passengers  for  injuries  sustained  from 
some  neglect  or  wrong,  they  are  liable  for  the  safe  delivery  of  their 
baggage  in  the  same  manner  and  to  the  same  extent  as  the  carriers 
of  merchandise.  2  Rorer  R.  R.  991.  The  question  will  therefore 
have  to  be  determined  on  the  same  principles  as  if  the  baggage  had 
been  shipped  as  freight  over  the  connecting  roads.  If  the  defendant 
were  both  the  receiving  and  delivering  carrier,  or  liable  for  the  safe 
delivery  of  the  baggage  at  the  point  of  destination,  proof  that  it  was 
in  good  condition  when  received,  and  in  a  damaged  condition  when 
delivered,  would  cast  on  the  defendant  the  onus  of  showing  that  the 
damage  was  occasioned  by  some  cause,  which  excepts  from  the  abso- 
lute liability  of  safe  delivery. 

An  arrangement,  express  or  implied,  between  companies  operating 
several  roads,  by  which  either  terminal  road  can  issue  through 
tickets  and  through  checks  for  baggage,  each  being  entitled  only  to 
the  fare  for  transporting  over  its  own  line,  does  not  render  each  one 
liable  for  the  loss  or  damage  sustained  on  any  of  the  roads.  Ells- 
worth V.  Tartt,  26  Ala.  733.  Such  arrangement  is  not  operative  to 
impose  on  the  intermediate  carrier  the  absolute  liability  of  safe 
delivery.  M.  &  W.  P.  E.  Co.  v.  Moore,  51  Ala.  394.  An  arrange- 
ment, such  as  the  one  shown  by  the  evidence,  imposed  on  the  defend- 
ant the  duty  to  receive  from  the  terminal  road,  safely  carry  over  its 
own  road,  and  deliver  to  the  other  connecting  terminal  road.  In- 
surance Co.  V.  Railroad  Co.,  104  U.  S.  146.  The  receiving  terminal 
road  has  no  power  or  authority,  in  the  absence  of  a  special  contract, 
to  bind  the  intermediate  road  to  transport  beyond  its  terminus. 
When  the  goods  have  been  safely  carried  to  its  terminus,  its  duty 
as  a  carrier  ceases,  and  the  duty  of  forwarding  arises. 

In  England,  the  courts  generally  have  held  that  the  duty  and 
obligation  of  the  carrier,  who  first  receives,  continues  through  the 
entire  route  of  transportation.  In  this  country  there  has  existed  a 
diversity  of  opinion.  In  Railroad  Co.  v.  Manufacturing  Co.,  16 
Wall.  318  [294],  INIr.  Justice  Davis,  while  regretting  this  diversity 
of  opinion  as  unfortunate  for  the  interests  of  commerce,  says:  "But 
the  rule  that  holds  the  carrier  only  liable  to  the  extent  of  his  own 
route,  and  for  the  safe  storage  and  delivery  to  the  next  carrier,  is  in 
itself  so  just  and  reasonable  that  we  do  not  hesitate  to  give  it  our 
sanction."     In  Lindley  v.  Railroad  Co.,  88  N.  C.  547,  it  was  held, 


422  CAKFJERS    OF   GOODS. 

that  in  the  absence  of  exphauation  as  to  how  or  where  the  loss  or 
damage  occurred,  or  which  of  the  roads  on  the  route  is  culpable,  the 
receiving  carrier  must  be  held  responsible  for  the  injury,  and  that 
the  non-delivery,  or  delivery  in  bad  condition  by  the  last  of  the 
connecting  lines,  is  pri ma  facie  evidence  of  default  in  the  receiving 
carrier.  In  Mobile.  &  Girard  1\.  Co.  v.  Copeland,  G3  Ala.  219,  it  is 
said:  "It  must  be  regarded  as  settled,  that  a  carrier,  though  a  cor- 
poration, chartered  by  the  laws  of  a  particular  State,  having  a  known 
and  defined  line  of  transportation,  may  contract  for  the  safe  carriage 
and  delivery  of  goods  to  a  point  beyond  the  terminus  of  his  line, 
within  or  without  the  State;  and  if  such  a  contract  is  made,  all  con- 
necting lines  stand  in  the  relation  of  his  agents,  for  whose  default 
he  is  responsible  to  the  owner  of  the  goods ;  "  and  it  was  held,  that 
in  such  case  it  was  the  known  and  established  duty  of  the  carrier  to 
deliver  them  at  tliat  place,  and  to  the  person  who  has  the  right  to 
receive  them.  This  rule  is  conceded,  where  the  contract  is  for  de- 
livery beyond  the  terminus  of  the  line;  but  the  special  agreement 
in  this  case  was,  that  the  receiving  carrier  would  safely  transport 
the  baggage  to  Union  Springs  and  deliver  it  in  good  condition  to  the 
defendant,  the  next  connecting  road.  "When  this  was  done,  the  duty 
and  responsibility  of  the  receiving  carrier  were  at  an  end.  In  case 
of  a  non-delivery  at  the  point  of  destination,  or  a  total  loss,  the  lia- 
bility is  prima  facie  on  the  receiving  carrier,  and  casts  on  him  the 
onus  of  showing  a  delivery  in  good  condition  to  the  next  connecting 
road.  The  expression  in  S.  &  N.  K.  Co.  v.  Wood,  71  Ala.  215,  if 
otherwise  understood,  are  explained  and  modified  as  here  stated. 
In  case  of  delivery  in  bad  order  by  the  last  carrier,  the  presumption 
against  the  first  carrier  does  not  arise. 

A  different  rule  applies  in  the  case  of  the  discharging  or  deliver- 
ing carrier.  From  the  necessities  of  trade  and  commerce,  or  of 
successful  competition,  or  from  other  causes,  it  has  become  common 
to  establish  long  routes  of  transportation  by  successive  and  connect- 
ing roads.  Under  sucli  circumstances  it  would  generally  be  difficult 
and  oftentimes  impossible  for  tlie  owner  to  sliow  on  which  road  tliey 
were  injured.  One  of  the  roads  is  certainly  responsible;  and  the 
last  carrier  has  the  means  of  showing  the  condition  of  tlie  goods 
wlien  received  by  liim.  The  safety  and  protection  of  the  commercial 
and  travelling  public  require  the  recognition  of  the  jtresuinption,  in 
the  absence  of  evidence,  that  the  goods  continued  in  tlie  same  condi- 
tion as  when  received  by  the  first  carrier,  unless  it  may  be  excep- 
tional goods  of  a  perishable  nature,  and  casts  on  the  discharging 
'•'irrier,  who  delivers  them  in  a  damaged  condition,  the  burden  of 
allowing  their  condition  when  received  by  liim.  It  has  been  held  in 
some  ca.ses  that  no  such  presumption  arises,  but  the  rule  we  a]i])rove 
is  ably  and  elaborately  considered  and  sustained  in  tlic  following 
cases:  Laughlin  v.  C.  &  N.  Ky.  Co.,  28  Wis.  201;  Smith  v.  N.  Y. 
Cent.  It.  Co.,  i:?  r.arb.  225.     This  prcsum])tion  liiriiionizps  with  the 


KEMEDIES   AS   AGAINST   CAKRIER.  423 

spirit,  and  promotes  the  policy  of  the  statute,  defining  the  duty  and 
liability  of  common  carriers  in  respect  to  the  reception  of  goods  for 
transportation,  and  their  delivery.     Code  of  1876,  §  2139. 

No  case  has  been  cited  to  our  attention,  and  we  have  found  none 
which  clearly  and  expressly  determines  the  rules  of  presumption  in 
an  action  against  the  intermediate  carrier.  The  case  of  Lindley  v. 
R.  Co. ,  88  N.  C,  supra,  has  been  mentioned  as  sustaining  the  rule 
that  delivery  in  bad  condition  by  the  last  of  successive  lines  is  pi-ima 
facie  evidence  of  default  in  the  intermediate  line;  but  an  examina- 
tion of  the  opinion  shows  that  the  defendant,  the  Richmond  & 
Danville  Railroad  Company,  was  managing  and  operating  the  road 
that  received  the  freight,  with  other  connecting  roads,  under  the 
general  name  of  the  Piedmont  Air-Line  Railway,  and  was  treated 
and  regarded  as  the  first  or  receiving  carrier.  There  is  no  question 
of  the  liability  of  an  intermediate  carrier  for  a  loss  or  injury  occur- 
ring on  its  own  road.     Chi.  &  R.  I.  R.  Co.  v.  Fahey,  52  111.  81. 

Though  the  intermediate  carrier  occupies  to  some  extent  relations 
different  from  those  of  the  first  aud  last  carriers,  the  principles 
applicable  to  them,  and  to  carriers  in  general,  will  serve  to  elucidate 
the  question  we  are  considering. 

When  goods  are  received  by  a  common  carrier  for  transportation, 
and  are  lost  or  damaged  while  in  custody,  the  presumption  is,  that 
it  was  occasioned  by  his  default;  but  the  owner  must  offer  some 
evidence  tending  to  show  a  non-delivery  or  delivery  in  a  damaged 
condition,  —  in  other  words,  some  evidence  of  the  loss  or  injury 
while  in  the  custody  of  the  carrier.  Proof  of  the  mere  reception  of 
goods  by  a  carrier,  and  of  their  condition  when  received,  without 
more,  does  not  create  the  presumption  of  loss  or  damage.  S.  &  N. 
Ala.  R.  Co.  V.  Wood,  71  Ala.  215,  supra.  We  have  said  that  the 
duty  of  the  intermediate  carrier  is  to  transport  safely  the  goods  to 
his  terminus,  and  deliver  in  the  same  condition  in  which  they  were 
received  to  the  next  connecting  line.  A  delivery,  in  such  case,  to 
the  next  connecting  line  is  tantamount  to,  and  must  be  governed  by, 
the  same  rules  as  a  delivery  to  the  consignee,  where  the  goods  are  to 
be  so  delivered  at  the  terminus  of  the  line  of  the  intermediate  car- 
rier. Had  the  contract  of  the  defendant  been  to  transport  the  bag- 
gage to  Montgomery,  the  terminus  of  the  road,  to  be  there  delivered 
to  the  plaintiff,  proof  of  the  reception  of  the  baggage,  in  good  order, 
by  the  defendant,  and  a  delivery  to  the  plaintiff  in  apparently  like 
order,  though  it  were  subsequently  discovered  it  had  been  damaged, 
would  not,  without  more,  cast  on  defendant  the  burden  of  showing 
it  was  in  good  condition  when  delivered.  The  plaintiff  must  intro- 
duce some  evidence  of  the  damaged  condition  of  the  goods  at  the 
time  of  delivery.  On  like  principles,  when  the  baggage  was  deliv- 
ered by  the  defendant  to,  and  received  by,  the  next  connecting  road, 
proof  that  it  was  in  a  damaged  condition  when  delivered  by  the  last 
carrier  does  not  operate,  in  the  absence  of  other  evidence,  to  cast  on 


424  CARKIEHS   OF   GOODS. 

the   intermediate  carrier  the  onus  of  showing  that  it  was  in  good 
condition  when  delivered  to  the  next  connecting  road. 

We  have  shown  that  when  goods  are  received  in  good  condition  by 
the  fii'st  carrier,  to  be  transported  by  successive  and  connecting 
lines,  the  presumption  is  they  continue  in  the  same  condition  until 
the  contrary  is  made  to  appear.  This  presumption  is  indulged  to 
place  7i  prima  facie  liability  on  the  carrier  who  delivers  the  goods  in 
bad  order,  and  who  knows  their  condition  when  received.  To  hold 
that  a  delivery  in  bad  order  by  the  last  carrier  raises  also  the  pre- 
sumption of  default  in  the  intermediate  carrier  will  present  the 
anomaly  of  two  inconsistent  legal  presumptions,  —  that  the  same 
damage  was  occasioned  by  the  default  of  the  last  carrier,  and  the 
intermediate  carrier  while  the  goods  were  in  their  respective  cus- 
tody at  different  times. 

Were  there  no  evidence  of  a  delivery  to  the  next  connecting  road 
by  the  defendant,  who  had  received  the  baggage,  or  evidence  that  it 
was  in  bad  order  when  delivered,  the  onus  would  be  on  the  defend- 
ant to  show  that  the  loss  or  injury  was  occasioned  by  some  cause 
which  exempted  from  liability.  But  it  appearing  from  the  evidence 
that  the  trunk  was  delivered  by  the  last  carrier  to  the  plaintiff  — 
thereby  making  manifest  a  delivery  by  the  defendant  to  such  carrier, 
if  the  plaintiff  would  hold  the  defendant  liable  for  the  damage,  he 
must  offer  some  evidence  showing  the  condition  of  the  trunk  at  the 
time  of  delivery  by  the  defendant. 

A  presumption  should  be  the  natural,  usual,  and  probable  infer- 
ence from  the  facts  proved.  A  duty  having  been  performed,  the 
presumption  of  deficient  performance  will  not  arise  from  a  subse- 
quent event,  no  direct  relation  or  connection  between  such  event  and 
the  act  of  performance  being  shown. 

It  may  be  said  that  this  rule  will  operate  to  force  the  owner  to 
successive  suits  against  the  different  carriers.  Any  rule  of  pre- 
sumption may  have  the  same  effect.  If  the  instruction  of  the  Circuit 
Court  were  sustained,  and  the  defendant  should  show  the  baggage 
was  in  good  condition  when  delivered,  the  plaintiff  would  be  driven 
to  a  suit  against  the  last  carrier.  No  rules  can  be  adopted  which 
would  avoid  such  effect,  other  than  to  hold  each  carrier  resjwnsible 
for  the  damage  without  respect  to  the  line  on  whicli  it  occurred, 
which  would  violate  well-settled  principles  of  law.  The  formation 
of  long  routes  of  transportatidii  by  successive  roads  is  in  the  interest 
of  cheaper  transjjortation  and  rapid  transit;  and  if  shippers  adopt 
this  mode  of  sliipping,  they  accept  its  difficulties  with  its  bene- 
fits. We  have  endeavorerl  to  formulate  the  rule  apjilieable  to  each 
carrier,  wliich  l)est  aecords  with  est:il)lished  legal  jirinciples.  Dar- 
ling V.  H.  &  W.  K.  Co.,  11  Allen,  !".>."). 

licvei'sed  ")ii/  ninatuh'il. 


REMEDIES    AS    AGAINST    CARRIER.  425 


d.    Evidence  of  Negligeyice. 

EMPIRE   TRANSPORTATION   CO.    v.    WAMSUTTA   OIL 
REFINING  AND   MINING   CO. 

63  Penn.  St.  14.     1809. 

Error  to  the  Court  of  Common  Pleas  of  Venango  County. 

This  was  an  action  on  the  case  by  the  Wamsutta  Oil  Refining  and 
Mining  Company  against  the  Empire  Transportation  Company,  to 
recover  damages  for  the  negligence  of  the  defendants  as  carriers,  by 
which  refined  oil  of  the  plaintiffs  that  the  defendants  were  carrying 
had  been  destroyed  by  fire.  The  case  was  tried  June  5,  1869,  before 
Trunkey,  p.  J.  The  plaintiffs  gave  evidence  that  they  had  shipped 
67  barrels  of  refined  oil  in  the  defendants'  cars,  and  that  a  car  of 
crude  oil  was  loaded  for  another  person  at  the  same  time;  "the  oil 
was  standard  light,  110°  or  upwards."  Standard  will  not  ignite  by 
flame  at  lower  than  110°,  crude  oil  will  ignite  at  Q>?>°  and  below;  that 
2862  gallons  of  oil  were  destroyed. 

Wm.  Best  testified :  "  I  was  foreman  on  the  freight  train  on  the 
10th  of  March,  1868.  On  that  morning,  about  a  mile  and  a  half  below 
Wetmore  Station,  I  discovered  fire  in  the  front  car  next  to  the 
engine.  There  was  an  engine  attached  to  the  rear  of  the  train  as  a 
pusher.  We  either  cut  the  front  engine  from  the  train  first,  or  the 
first  two  cars  from  the  rest  of  the  train.  The  train  was  stopped, 
and  then  the  engineer  reversed  the  rear  engine  and  backed  off  all 
but  the  first  two  cars.  We  then  tried  to  separate  these  two  cars. 
We  could  not  do  it,  because  we  could  not  get  the  pin  out.  The  pin 
was  fast  in  some  manner,  I  do  not  know  how.  We  then  broke  into 
the  second  car  and  unloaded  all  the  oil  we  could  on  account  of  the 
heat.  The  heat  was  coming  in  from  the  front  car.  The  second  car 
caught  fire  from  the  first.  I  do  not  know  how  the  first  car  caught. 
Know  of  no  other  cause  than  sparks  from  the  engine,  and  I  do  not 
know  that.  I  think  the  train  was  on  schedule  time  going  at  its 
usual  speed.  The  engine  was  supposed  to  be  in  good  condition. 
The  fire,  when  I  first  discovered  it,  was  at  the  end  next  the  engine. 
We  had  not  much  time  to  take  the  pin  out  before  the  flames  inter- 
fered with  us.  We  were  going  up  a  grade.  I  do  not  think  the 
brakes  were  down  on  the  first  car.  Every  effort  was  made  to  save 
the  oil  after  the  fire  was  discovered.  We  had  no  difficulty  in  getting 
the  pin  between  the  second  and  third  cars  out." 

Geo.  0.  Downer  testified:  "Was  conductor  on  this  train.  The 
train  was  going  about  ten  or  twelve  miles  an  hour,  had  been  on  time 
all  the  way.  I  first  discovered  that  the  forward  car  on  the  end  next 
the  forward  engine  was  on  fire.     The  train  was  stopped.     I  tried  to 


426  CARKIERS   OF   GOODS. 

pull  the  pin  between  the  first  aiul  second  cars  out.  It  stuck  for  some 
reason  or  other,  I  do  not  know  what.  We  then  pulled  the  pin  be- 
tween the  second  and  third  cars.  The  first  and  second  cars  were 
burned.  The  engine  was  not  throwing  any  more  sparks  than  usual. 
The  first  attempt  to  cut  the  train  was  to  separate  the  first  and  second 
cars.  The  link  might  have  slipped  b}-,  and  it  might  be  that  the 
links  were  not  slacked;  in  that  case  we  could  not  take  the  pin  out. 
I  do  not  know  what  was  the  reason  we  could  not  take  the  pin  out.  I 
do  not  know  whether  there  was  any  difference  in  this  pin  or  coup- 
ling from  other  pins  and  couplings  or  not.  The  front  engine  did 
emit  sparks.     I  know  it  took  fire  from  the  sparks  from  the  engine." 

Wm.  H.  Burton  testified:  "I  was  brakesman  on  this  train.  I  tried 
to  take  the  pin  out  between  the  first  and  second  cars,  but  could  not 
do  it.  I  could  not  get  the  pin  out  beca\ise  the  link  was  jammed. 
The  first  or  second  cars  were  not  coupled  as  cars  are  usually  coupled. 
The  coupling  link  could  not  have  got  in  the  shape  it  did  by  sudden 
stopping.     It  must  have  got  in  that  shape  by  going  around  a  curve." 

The  defendants  gave  in  evidence  their  receipt  to  the  plaintiffs  for 
the  oil,  subject  to  conditions  following,  the  third  of  which  was 
"that  the  owner  or  consignee  (in  consideration  of  the  extremely 
hazardous  nature  of  such  merchandise,  which  is  not  covered  by  any 
extra  charge  for  transportation)  hereby  assumes  all  risk  for  leak- 
age, evaporation,  and  loss  by  fire,  while  in  transit,  or  at  depots  or  in 
stations,  or  on  board  boats,  vessels,  or  lighters,  frf)m  any  cause  what- 
ever, and  all  dangers  and  delays  of  railroad  and  water  transportation 
to  destination,  and  in  any  claim  or  demand,  suit  at  law  or  equity, 
against  this  company  or  transportation  company,  or  agent,  for  loss 
or  damage  thereby,  this  bill  of  lading  shall  be  deemed  and  taken  as 
a  release  in  full  therefor."  They  gave  evidence  also  that  crude  oil 
and  refined  oil  were  usually  carried  in  the  same  train;  that  there 
was  not  enough  refined  oil  shipped  for  trains  exclusively  of  that 
kind.  They  gave  evidence  also  by  the  engineer  on  the  train,  viz., 
"the  fire  caught  in  rear  end  of  front  car.  The  train  was  running  on 
time.  The  engine  was  in  good  condition,  with  new  spark  arri'Ster. 
The  fire  communicated  with  second  car  so  quick  we  could  not  cut  it 
off.     It  was  almost  instantaneous." 

The  second  j.oint  of  the  plaintiffs  was:  "If  the  jury  believe  that 
tlie  defendant  placed  thr  car  containing  jdaintiff's  rctincd  oil  in  a 
train  composed  in  i»art  of  cars  loaded  with  crude  oil,  and  tlie  said 
car  containing  plaintiff's  refined  oil  was  coupled  with  a  car  contain- 
ing crude  oil,  and  the  said  crude  oil  was  greatly  more  combustible 
tliiin  the  refined  oil  —  and  the  said  crude  oil  was  ignited  by  sparks 
from  the  engine,  and  connnunicatcd  the  fire  to  the  car  containing 
plaintiff's  oil,  by  which  it  was  destroyed  — whidi  s])arks  would  not 
have  ignited  the  refined  oil  —  and  that  the  coupling  of  the  said 
refined  oil  car  and  the  crude  oil  cur  in  whieh  the  fire  originated  was 
defective,  and  that  the  defendant's  servants  endeavored  to  uncoiij.le 


REMEDIES   AS   AGAINST    CARRIER.  427 

the  said  cars  and  could  and  would  have  uncoupled  the  said  cars  and 
saved  the  refined  oil  but  for  the  said  defective  coupling,  the  plaintiff 
is  entitled  to  recover." 

This  point  was  affirmed. 

The  verdict  was  for  the  plaintiffs  for  $678.18.  The  defendants 
took  a  writ  of  error,  and  assigned  for  error  the  answer  to  the 
plaintiffs'  point. 

Sharswood,  J.  As  a  common  carrier  cannot,  by  a  special  notice 
or  limitation  in  the  contract  or  bill  of  lading,  protect  himself  from 
liability  for  the  negligence  of  himself  or  his  servants,  Pennsylvania 
Railroad  Co.  v.  Henderson,  1  P.  F.  Smith,  315,  the  only  question 
in  this  cause  was,  whether  the  defendants  had  been  guilty  ot  such 
negligence.  The  error  assigned  is,  that  the  court  below  took  that 
question  from  the  jury,  by  affirming  the  plaintiff's  second  point,  by 
which  they  were  instructed,  that  if  they  were  satisfied  that  certain 
facts  were  proved,  the  plaintiffs  were  entitled  to  recover.  The  rule 
upon  this  subject  was  very  clearly  laid  down  in  McCully  v.  Clarke, 
4  Wright,  399,  in  which  it  was  said:  "There  are  some  cases  in 
which  a  court  can  determine  that  omissions  constitute  negligence. 
There  are  those  in  which  the  precise  measure  of  duty  is  determinate, 
the  same  under  all  circumstances.  When  a  duty  is  defined,  a  failure 
to  perform  it  is,  of  course,  negligence."  Other  cases  fully  corrob- 
orate this  doctrine:  Powell  v.  Pennsylvania  Eailroad  Co.,  8  Casey, 
414;  Pennsylvania  Railroad  Co.  v.  Ozier,  11  id.  60;  Pittsburg  & 
Connellsville  Railroad  Co.  v.  McClurg,  6  P.  F.  Smith,  294;  Glassey 
V.  Hestonville  Passenger  Railway  Co.,  7  id.  172. 

The  duty  of  a  common  carrier  is  to  provide  a  vehicle  in  all  respects 
adapted  to  the  purposes  of  carriage,  and  so  constructed  as  to  be  able 
to  encounter  the  ordinary  risks  of  transportation.  Story  on  Bailments, 
§  509.  It  must  be  perfect  in  all  its  parts,  in  default  of  which  he 
becomes  responsible  for  any  loss  that  occurs  m  consequence  of  any 
defect,  or  to  which  it  may  have  contributed.  Hart  v.  Allen,  2  Watts, 
114;  New  Jersey  Railroad  Co.  v.  Kennard,  9  Harris,  204.  When 
merchandise,  of  whatever  character,  is  carried  on  the  same  railroad 
train  with  cars  loaded  with  a  combustible  substance,  easily  ignited 
by  sparks  from  the  locomotive  engine,  it  is  the  special  duty  of  the 
carrier  to  take  every  available  precaution  against  the  communication 
and  spreading  of  the  fire,  if  it  should  occur.  An  evident  and  simple 
measure  is  to  have  the  coupling  of  the  cars  in  such  perfect  order 
that  any  one  or  more  of  them  can  be  easily  detached  from  the  others 
in  time  to  be  saved  from  the  consequences.  If  the  fact  be  that  the 
coupling  was  defective,  unless  such  defect  was  the  result  of  an 
inevitable  accident,  and,  in  consequence  of  it,  the  car  containing  the 
plaintiff's  merchandise  could  not  be  detached  in  time  to  be  saved, 
the  negligence  and  liability  of  the  carrier  are  inferences  of  law 
from  the  facts. 

But  it  is  said  that  the  07ius  in  this  case  was  on  the  plaintiff's  below, 


428  CARKIERS    OF    GOODS. 

to  show  that  the  defect  of  the  coupling  arose  from  the  negligence  or 
want  of  care  of  the  defendants.  "We  think  not.  "When  the  carriage 
is  proved  to  have  been  defective  at  the  time  of  the  injury,  and 
that  the  defect  contributed  to  the  loss,  the  onus  is  then  necessarily 
shifted  to  the  carrier.  He  must  rebut  it  by  evidence  that  tlie  defect 
arose,  not  from  the  insutiiciency  of  the  vehicle  into  which  the  goods 
were  loaded,  but  from  some  subsequent  accident  beyond  his  control. 
This  puts  the  burden  where  it  ought  most  properly  to  rest.  The 
carrier  ought  to  be  able  to  show,  with  ease,  by  his  servants,  that 
the  vehicle  was  inspected  before  the  commencement  of  the  trip,  and 
everything  found  to  be  in  good  order.  It  would  be  very  difficult  for 
the  plaintiffs  to  prove  the  contrary,  — that  it  had  not  been  examined, 
or  that  it  was  in  bad  order  when  it  started.  On  the  trial  of  this 
case,  in  the  court  below,  there  was  no  evidence  to  show  when  or  how 
the  links  of  the  coupling  of  the  cars  became  jammed,  so  that  they 
could  not  be  separated  in  time.  It  was  surmised  by  one  of  the 
witnesses,  that  it  must  have  got  into  that  shape  by  going  around  a 
curve.  Even  admitting  this  to  be  so,  the  important  question  remains 
unanswered,  and  which  it  was  incumbent  on  the  carriers  to  answer, 
when  did  this  occur?  Had  it  been  shown  to  have  happened  during 
the  course  of  the  same  trip  in  which  the  lire  took  place,  and  that  it 
was  not  known  to,  or  discovered  by,  the  carriers,  or  their  servants, 
in  time  to  be  remedied,  then,  indeed,  there  might  have  been  a  ques- 
tion of  negligence  for  the  jury.  But  without  any  evidence  as  to 
this  point,  there  was  nothing  for  them  but  that  whicli  was  sub- 
mitted, whether  the  coupling  of  the  car  was  defective,  and  that 
defect  contributed  to  produce  the  loss. 

Judgment  affirmed. 


KIRST  V.    :\riLWArKEE,    LAKE    SHORE    .^-   WESTERN 

R.    C(J. 

40  Wis.  4S9.     1879. 

"Thr  complaint  avers  a  failure  on  the  part  of  tlie  defendant  com- 
pany to  deliver  to  the  consignee  three  carboys  of  acid,  and  alleges 
that  such  carboys,  througli  tlio  negligence  and  default  of  the  agents 
of  the  defendant,  were  broken  and  discharged.  The  itlaintilTs  make 
a  part  of  their  complaint  the  receipt  given  by  the  company  on  the 
delivery  of  the  goods  in  question  for  transportation,  in  whieh  recei])t 
it  is  expressly  stipulated  tliat  the  company  shall  not  be  responsible 
for  tlie  breakage  of  any  carboys  of  acid,  unless  it  can  be  sliown  tliat 
such  damage  or  loss  occurred  through  the  negligence  or  d«>fault  of 
the  agents  of  the  company. 

"The   cause  was  last  tried  by  the  county  court,    a   jury   being 


REMEDIES   AS   AGAINST   CAKRIER.  429 

waived.  It  appeared  on  the  trial  that  the  plaintiffs  delivered  in 
good  condition  to  the  defendant,  at  its  depot  in  Milwaukee,  28  car- 
boys of  acid,  to  be  transported  to  Appleton.  One  of  the  plaintiffs 
testified  that  his  firm  received  a  letter  from  the  consignees  stating 
that  only  25  carboys  were  received  from  the  carrier  at  the  place  of 
consignment.  He  says  that  he  then  went  to  the  general  freight 
agent,  at  his  office  in  Milwaukee,  to  make  inquiries  about  the  miss- 
ing three.  He  was  informed  by  the  agents  of  the  defendant  that 
the  three  missing  carboys  had  been  broken  by  the  Chicago  &  North- 
western Eailway  Company  in  Milwaukee,  which  company  did  the 
switching  for  the  defendant  in  that  city;  and  that  they  would 
examine  into  the  matter  and  report.  After  waiting  two  or  three 
weeks  and  hearing  nothing  from  the  company,  the  same  plaintiff 
again  called  upon  the  agent,  and  was  informed  that  the  matter  had 
been  inquired  into,  and  it  was  found  that  the  three  carboys  were 
broken  by  the  Chicago  &  Northwestern  Company  while  switching, 
and  that,  as  the  latter  company  refused  to  pay  for  the  loss,  the  agent 
of  the  defendant  refused  to  pay.  The  value  of  the  goods  was  shown, 
and  also  the  contract  for  transportation.  At  the  close  of  the  plain- 
tiff's case,  the  defendant  moved  for  a  nonsuit,  mainly  on  the  ground 
that,  in  addition  to  proving  the  loss  of  the  goods  the  onus  was  upon 
the  plaintiffs,  under  the  stipulation  in  the  receipt,  of  showing  that 
the  breakage  occurred  through  the  negligence  or  default  of  the 
agents  of  the  defendant.  The  learned  county  court,  however,  held 
that,  as  the  defendant  had  failed  or  neglected  to  give  a  full  and  fair 
account  as  to  how  the  loss  occurred,  when  applied  to  by  the  plain- 
tiffs, this  was  sufficient  proof  from  which  negligence  on  the  part 
of  the  agents  and  servants  of  the  company  might  be  inferred.  The 
correctness  of  this  view 'is  the  sole  question  we  have  to  consider." 

Plaintiffs  had  a  verdict  and  judgment;  and  defendant  appealed. 

Cole,  J.  On  the  part  of  the  defendant  it  is  claimed,  that,  under 
the  stipulation  in  the  receipt  limiting  the  liability  of  the  carrier, 
the  defendant  was  simply  a  bailee  for  hire  of  the  carboys;  and  that 
therefore  negligence  or  default  on  its  part  would  not  be  presumed, 
but  must  be  affirmatively  shown  by  the  party  charging  it,  and  seek- 
ing a  recovery  founded  thereon.  The  general  soundness  of  this 
argument  may  be  conceded.  But  the  precise  question  here  is, 
Avhether,  when  the  carboys  were  shown  to  be  m  the  possession  or 
under  the  control  of  the  defendant,  and  a  breakage  occurred  from 
switching,  which,  in  the  ordinary  course  of  things,  does  not  happen 
if  those  who  have  charge  of  the  train  use  proper  care,  this  does  not 
afford  reasonable  evidence,  in  the  absence  of  a  full  explanation  by 
the  carrier,  that  the  loss  or  breakage  did,  in  fact,  occur  through  the 
negligence  or  default  of  the  agents  of  the  company.  We  are  inclined 
to  the  opinion  that  the  inference  of  negligence  may  be  made  under 
siich  circumstances,  and  that  the  ruling  of  the  county  court  on  this 
point  was  right.     Here  the  loss  resulted  from  an  act  from  which, 


430  CARRIERS   OF   GOODS. 

when  due  care  is  taken  in  its  performance,  loss  does  not  ordinarily 
ensue.  For  it  is  not  reasonable  to  assume  that  carboys  of  acid  are 
usually  broken,  when  transported  on  railroads,  by  switching  of  the 
cars,  when  that  is  done  in  a  jjroper  manner.  Consequently,  when 
the  plaintiffs  showed,  as  they  did  by  the  admission  of  the  agents  of 
the  company,  tliat  the  carboys  were  broken  by  the  Chicago  &  North- 
western Company  while  switching,  a  foundation  was  laid  for  a  rea- 
sonable inference  of  negligence,  especially  in  the  absence  of  explana- 
tion upon  the  subject,  and  the  burden  was  thrown  upon  the  defendant 
to  rebut  that  inference.  This  was  the  rule  laid  down  in  Scott  r. 
London  Dock  Co.,  3  H.  &  C.  596,  on  a  point  quite  analogous  to  the 
one  we  are  considering.  The  plaintiff  in  that  case  was  injured  by 
bags  of  sugar  falling  from  a  crane,  in  which  they  were  lowered  to 
the  ground  from  the  warehouse  of  the  defendant.  It  was  claimed 
that  there  was  no  evidence  to  go  to  the  jury  that  the  servants  of  the 
defendant  were  guilty  of  negligence  or  want  of  care  in  lowering  the 
crane.  Erie,  C.  J.,  in  stating  the  conclusion  at  which  a  majority 
of  tlie  court  in  the  Exchequer  Chamber  had  arrived,  said :  "  There 
must  be  reasonable  evidence  of  negligence.  But  where  the  thing  is 
shown  to  be  under  the  management  of  the  defendant  or  his  servants, 
and  the  accident  is  such  as  in  the  ordinary  course  of  things  does  not 
happen  if  those  who  have  the  management  use  proper  care,  it  affords 
reasonable  evidence,  in  the  absence  of  explanation  by  the  defendant, 
that  the  accident  arose  from  want  of  care."  In  Steers  v.  The  Liver- 
pool, N.  Y.  &  P.  S.  Co.,  57  N.  Y.  1,  "the  plaintiff  took  passage  on 
one  of  the  defendant's  steamers  for  Europe,  and  received,  on  pay- 
ment of  the  passage-money,  a  printed  ticket  signed  by  the  defend- 
ant's agent,  containing  a  clause,  in  suljstance,  that  the  company  was 
not  to  be  held  liable  for  loss  or  damage  to  baggage  in  any  sum, 
unless  the  same  shall  have  been  proved  to  have  been  occasioned  by 
gross  negligence  of  the  com])any  or  its  agents.  .  .  .  On  going  aboard, 
the  plaintiff's  trunk  was  delivered  into  the  custody  of  the  defend- 
ant's agents,  who  assumed  to  take  charge  of  it;  at  the  end  of  the 
voyage,  the  defendant  did  not  produce  it,  or  in  any  way  account  for 
it.  In  an  action  to  recover  for  the  loss  of  the  trunk  and  contents, 
held,  that  tlie  evidence  was  sufficient  to  sustain  a  finding  by  the  jury, 
of  gross  negligence."  The  facts  in  regard  to  the  manner  in  which 
the  breakage  occurred  in  the  present  case  were  more  particularly 
within  the  knowledge  or  reach  of  the  defendant,  and,  according  to 
the  doctrine  of  the  above  cases,  it  was  called  upon  to  give  some 
exjilanation  of  the  loss.  The  agents  only  said  that  the  carboys  liad 
Ijeen  broken  by  another  conqtany  while  switching,  and  gave  no  other 
account  of  their  loss.  Under  these  circumstances,  we  concur  in 
t'  •  "jiinion  of  the  county  court,  that,  because  defendant  failed  or 
U;d  to  give  a  full  statement  as  to  how  the  loss  occurred,  its 
1.  •  might  be-  inferred  in  tliat  regard. 

ws  frf>ni  tliese  views  that  th<'  judgment  of  the  county  court 
must  bo  affirmed. 


carrier's  compensation.  431 

9.     CARKIER'S   COMPENSATION. 

a.    Freight  Charges. 

CURLING  V.    LONG. 
Common  Pleas.     1  Bos.  &  P.  634.     1797. 

Assumpsit  for  freight  claimed  under  the  following  circumstances. 
The  plaintiffs  were  owners  of  the  ship  "The  Earl  of  Effingham," 
and  the  defendants  the  consignees  of  nine  hogsheads  of  sugar  shipped 
on  board  her  while  lying  in  Salt  Eiver,  Jamaica,  and  bound  for 
London.  The  goods  were  put  on  board  on  the  18th  of  September, 
1795,  and  four  several  bills  of  lading  were  duly  signed  by  the  cap- 
tain. On  the  2d  of  December  following,  having  completed  her  lad- 
ing, the  ship  cleared  out  for  her  voyage.  On  the  31st  of  December, 
while  waiting  for  convoy,  she  was  cut  out  of  the  river  by  two  French 
privateers,  and  carried  out  to  sea,  but  was  recaptured  on  the  same 
day  by  a  British  schooner,  and  carried  into  Port  Royal.  The  ship 
was  afterwards  libelled  in  the  Admiralty  Court  of  Jamaica,  and 
appraised  and  sold  under  an  order  of  that  court.  The  proceeds  of 
the  sale,  after  deducting  one-eighth  for  salvage,  were  remitted  to 
the  defendants  as  agents  for  the  several  owners  of  goods  on  board. 
The  whole  of  the  cargo,  including  the  goods  in  question,  was  brought 
to  the  ship  in  Salt  River  for  the  purpose  of  being  loaded,  and  was 
actually  put  on  board  at  the  expense  of  the  plaintiffs  as  owners  of 
the  ship  according  to  the  usage  of  the  Jamaica  trade.  This  amounted 
to  £310.  The  plaintiffs  also  expended  £4.55  18s.,  according  to  the 
same  usage,  for  the  provisions  and  wages  of  the  crew,  between  the 
time  when  the  ship  began  to  take  in  her  loading,  and  the  time  of 
the  capture.  The  plaintiffs'  demand  was  shaped  in  different  ways 
so  as  to  recover  a  proportion  of  the  freight  either  from  the  1st  of 
September,  1795,  when  the  goods  were  put  on  board,  to  the  1st 
of  January,  1796,  when  the  ship  was  recaptured,  or  from  the  2d  of 
December,  1795,  the  day  the  goods  were  shipped,  to  the  1st  of 
January,  1796,  the  day  she  was  recaptured ;  or  to  recover  a  propor- 
tion of  the  sums  expended  by  the  plaintiffs  as  above  mentioned. 

The  cause  was  tried  before  Eyre,  Ch.  J.,  at  the  Guildhall  sittings, 
after  Michaelmas  Term,  1796,  who  directed  a  nonsuit. 

A  rule  nisi  for  setting  aside  this  nonsuit  and  entering  a  verdict 
for  the  plaintiffs  having  been  obtained  on  a  former  day  [etc.]. 

Eyre,  Ch.  J.  This  is  a  case  of  the  very  first  impression;  and  it 
appears  to  me  that  the  demand  of  the  plaintiffs  is  neither  warranted 
by  the  marine  or  by  the  common  law.  The  former  has  settled  what 
freight  is,  what  services   it  includes,  and  also  that  it  is  divisible. 


432  CAKKIEKS   OF   GOODS. 

which  is  contrary  to  the  principles  of  the  common  law.  At  common 
law  all  the  expenses  of  loading  are  included  in  the  freight,  and  if 
the  party  be  not  entitled  to  freight  he  can  demand  no  satisfaction 
for  loading.  The  inception  of  freight  is  breaking  ground.  In  the 
law  of  insurance,  indeed,  this  doctrine  is  not  liolden  so  strict,  for 
there,  if  the  goods  be  so  situated  as  to  create  a  well-grounded  expec- 
tation of  freight  being  raised,  it  is  decided  that  the  freight  is  insur- 
able and  recoverable.  But  that  does  not  affect  the  marine  law  as  to 
freight  in  cases  between  the  shipowners  and  freighters,  by  which 
the  case  must  be  decided.  According  to  that  law  no  right  to  freight 
commences  till  the  ship  has  broken  ground;  here  the  ship  had  not 
broken  ground,  having  been  captured  in  the  river.  The  situation  of 
the  places  where  cargoes  are  taken  in  materially  varies  the  labor, 
cost,  and  pains  taken  by  the  shipper  and  master.  In  some  places 
there  is  little  ditHculty  and  expense,  in  others  a  great  deal.  On 
these  circumstances  depends  the  price  of  freight:  if  the  master  incurs 
this  cost  and  trouble,  he  takes  a  larger  freight;  if  the  shipper,  a 
smaller.  In  either  case  the  freight  is  his  reward.  If,  therefore,  by 
the  marine  law  he  be  entitled  to  no  freight,  he  can  claim  no  remun- 
eration. So  stands  the  case  by  the  marine  law.  Let  us  now  view  it 
ui)on  the  principles  of  the  common  law.  The  contract  was  to  load 
these  goods  on  board  and  bring  them  to  England  for  a  certain  price. 
Upon  this  contract,  how  could  a  declaration  be  framed  for  the  plain- 
tiff's demand  either  in  assumpsit,  or  an  action  on  a  charter  party? 
Could  the  plaintiffs  state  a  part-performance  of  the  contract  and 
insist  on  payment  for  it?  This  could  not  be  done,  for  by  the  law 
of  England  the  contract  is  entire  and  indivisible.  By  the  marine 
law,  indeed,  parties  may  recover  ^jro  )'at<i,  if  the  voyage  be  interru})ted. 
And  by  the  common  law,  where  a  contract  cannot  be  performed,  such 
a  meritorious  consideration  may  arise  as  will  sometimes  entitle  a 
party  to  recover  in  the  form  of  an  action  of  (issumpsit  for  work  and 
labor  even  after  tlie  contract  has  been  broken.  Such  is  the  ease 
where  a  ship  after  capture  and  recapture  completes  her  voyage;  for 
there  the  shipper  has  his  goods  with  the  advantage  of  carriage;  and 
ujion  that,  though  the  original  contract  be  gone,  a  meritorious  con- 
sideration arises  which  entitles  the  master  to  a  recompense;  not, 
however,  on  the  foot  of  the  old  contract,  but  on  a  new  contract 
which  springs  out  of  it.  Here  the  ship  never  arrived  at  the  port  of 
destination,  but  jnit  into  a  ]»ort  in  Jamaica,  without  having  con- 
ferred any  benciit  on  tlie  freighters  l>y  the  carriage,  or  bettered  the 
goods  in  the  smallest  degree  by  the  expenses  incurred.  1  am  there- 
ffjfe  of  opinion,  that  neither  by  the  marine  or  the  common  law  are 
these  plaintiffs,  however  unfortunate,  entitled  to  recover. 

Hkath,  J,  This  is  a  demand  for  a  proportion  of  freight.  The 
contract  for  freight  is  teclinieiil  in  its  nat\ire.  I'.y  tlie  marine  law 
an  inchoate  right  to  freight  attaches  from  tlie  .Hhi|)'s  breaking  ground, 
;in.l  i  i  'otmummated  \x\>u\\  her  arrival  at  the  ])(irt  of  destination.     If 


carrier's   COMPENSATION'.  433 

the  voyage  be  interrupted  the  party  may  claim  ^?ro  rata.  Freight 
commences  at  the  same  time  in  all  parts,  since  it  depends  on  the 
same  principles  here  and  at  Jamaica.  It  is  true,  indeed,  that  by 
the  customs  of  different  ports,  duties  more  or  less  onerous  may  be 
imposed  on  the  master,  and  recompensed  by  the  freight.  But  that 
does  not  vary  the  principle.  This  case  is  only  new  in  its  circum- 
stances. The  law  of  insurance  does  not  apply  to  this  case;  for  the 
mere  hope  or  expectation  of  interest  is  sufficient  to  entitle  the 
assured  in  a  policy  of  insurance  to  recover  against  the  underwriters. 
EooKE,  J.  This  is  a  new  case,  and  therefore  I  take  the  demand 
not  to  be  founded  on  the  usage  of  trade.  The  contract  in  a  bill  of 
lading  is  for  freight.  The  expression  is,  "they  paying  freight;" 
and  though  the  master  may  have  been  at  the  expense  of  loading, 
and  the  freight  was  higher  on  that  account,  yet  as  it  had  not  com- 
menced, the  plaintiffs  cannot  demand  a  recompense.  The  text- 
writers  all  agree  that  freight  commences  from  the  breaking  ground. 
This  is  clear  and  intelligible:  the  ship  begins  to  earn  when  she 
begins  to  move;  and  we  cannot  introduce  new  principles.  The 
writers  also  say,  that  there  may  be  cases  where  the  shipowners  may 
be  entitled  to  a  proportion  of  what  the  ship  has  earned;  but  that 
cannot  include  what  has  been  earned  by  the  master  before  the  com- 
mencement of  the  voyage.  This  doctrine  is  founded  in  good  policy, 
for  it  tends  to  expedite  the  sailing  of  the  ship.  Did  the  freight 
commence  sooner,  it  might  induce  the  master  to  stay  a  longer  time 
in  port  and  so  delay  the  voyage.  Insurance  is  a  contract  of  indem- 
nity; the  cases,  therefore,  which  are  founded  on  such  a  contract  are 
not  applicable  to  this  case.  Upon  these  grounds  I  think  the  non- 
suit right. 

Rule  discharged. 


TIXDAL   V.    TAYLOR. 

Queen's  Bench.     4  El.  &  B.  219.     1854. 

Lord  Campbell,  C.  J.  We  entirely  agree  to  the  law  laid  down 
by  Lord  Tenterden  in  his  treatise  (8th  ed.),  p.  595,  and  in  Thomson 
V.  Trail,  2  Car.  &  P.  334,  E.  C.  L.  R.  vol.  12,  when  applied  to  a 
general  ship,  that  "  a  merchant,  who  has  laden  goods,  cannot  insist 
on  having  them  relanded  and  delivered  to  him  without  paying  the 
freight  that  might  become  due  for  the  carriage  of  them,  and  indem- 
nifying the  master  against  the  consequences  of  any  bill  of  lading 
signed  by  him."  It  is  argued  that  there  can  be  no  lien  on  the 
goods  for  freight  not  yet  earned  or  due ;  but  when  the  goods  were 
laden  to  be  carried  on  a  particular  voyage,  there  was  a  contract  that 
the  master  should  carry  them  in  the  ship  upon  that  voyage  for 
freight;  and  the  general  rule  is  that  a  contract  once  made  cannot  be 

28 


434  CAEKIERS   OF   GOODS. 

dissolved  except  with  the  consent  of  both  the  contracting  parties. 
By  the  usage  of  trade,  the  merchant,  if  he  redemands  the  goods  in 
a  reasonable  time  before  the  ship  sails,  is  entitled  to  have  them 
delivered  back  to  him,  on  paying  the  freight  that  might  become  due 
for  the  carriage  of  them,  and  on  indemnifying  the  master  against 
the  consequences  of  any  bills  of  lading  signed  for  them:  but  these 
are  conditions  to  be  performed  before  the  original  contract  can  be 
affected  by  the  demand  of  the  goods.  It  would  be  most  unjust  to  the 
owners  and  master  of  the  ship  if  we  were  to  hold  that  upon  a  simple 
demand  at  any  time  the  goods  must  be  delivered  back  in  the  port 
of  outfit;  and  Thompson  r.  Small,  1  Com.  B.  328.  the  case  relied 
upon  by  Mr.  JIV/As,  is  no  authority  for  such  a  doctrine. 


BAILEY  V.    DAMON. 
3  Gray  (Mass.),  92.     1S54. 

A.ssuMPSiT  on  a  contract  in  writing,  dated  the  7th  of  February, 
1S50,  whereby  the  defendants  agreed  to  ship,  and  the  plaintiffs  to 
transport,  seventy-five  thousand  feet  of  lumber  from  Boston  to 
Sacramento  City,  California,  at  $S.5  per  thousand  and  five  per  cent 
primage.     With  dated  May  26th,  1850. 

Trial  before  Meruick,  J.,  at  November  Term,  1853,  when  the 
plaintiffs  introduced  evidence  tending  to  show  that  they  got  the 
vessel  ready  to  receive  her  cargo,  and  the  defendants  immediately 
put  on  board  78,875  feet  of  lumber,  tlie  stowing  of  which  was  com- 
pleted on  the  26th  of  March,  1850,  and  which  made  about  three- 
quarters  of  a  cargo  for  the  vessel;  that  she  lay  at  the  wharf,  with 
the  defendant's  assent,  until  the  21st  of  May,  when  the  defendants 
took  away  tlieir  lumber;  and  that  by  tliis  act  of  the  defendants  the 
vessel  was  delayed,  in  procuring  otlier  freight,  until  the  15th  of 
July,  when  slie  sailed  for  San  Francisco. 

The  plaintiffs  also  offered  evidence  that,  in  place  of  the  defend- 
ants' lunibf-r,  they  carried  some  goods  for  other  persons  at  a  lower 
rate  of  freiglit,  and  some  lumber  on  their  own  account,  their  net 
earnings  upon  which  were  less  than  the  rate  of  freight  agriM-d  to  be 
paid  by  the  defendants.  To  this  evidence  tlie  defendants  objected; 
but  the  judg(^  admitted  it,  for  the  purpo.se  of  showing  how  much  the 
]>laintiffs  ought  to  deduct  from  tlie  damages  occasioned  by  tlie  loss 
of  the  freigljt  of  the  defendants'  lumber;  and  instructed  the  jury 
that  the  plaintiffs  were  entitled  to  recover  the  amount  of  freight  and 
primage  which  they  would  have  earned  if  they  had  taken  the  defentl- 
anth'  lumber  to  Sacramento,  adding  the  demurrage  for  the  time  they 


carrier's  compensation.  435 

were  delayed  to  obtain  other  freight,  and  deducting  the  freight  they 
received  from  other  shipments  of  goods  of  other  persons,  and  their 
net  earnings  on  their  own  shipments. 

The  jury  returned  a  verdict  for  the  plaintiffs,  and  assessed  damages 
at  $6,020.75.  The  defendant  moved  for  a  new  trial  on  the  ground 
that  these  rulings  and  instructions  were  erroneous. 

Dewey,  J.  This  case  is  put  by  the  plaintiffs  upon  the  grounds 
upon  which  damages  are  given  on  a  contract  to  ship  goods  to  a  given 
port,  when,  through  the  default  of  the  shipper,  the  goods,  although 
the  voyage  is  commenced,  do  not  reach  the  port  of  discharge.  In 
such  cases,  as  appears  well  established  by  the  cases  cited  by  the 
counsel  for  the  plaintiffs,  the  entire  freight  is  earned,  and  must  be 
paid  by  the  shipper.  The  next  inquiry  is  whether  the  case  at  bar 
is  of  like  character?  It  was  urged  in  the  argument,  that  placing 
the  goods  on  board  ship  preparatory  to  sailing  was  equivalent  to 
the  actual  commencement  of  the  voyage  in  its  consequences  as  to  the 
right  of  the  carrier  to  recover  full  freight.  We  find  no  authority 
for  that  position.  Indeed,  the  rule  as  to  what  constitutes  the  com- 
mencement of  a  voyage,  in  reference  to  liability  for  freight,  is  well 
settled  otherwise.  That  rule  is,  that  the  voyage  commences  upon 
breaking  ground  for  the  voyage,  and  not  before.  Curling  v.  Long 
1  Bos.  &  Pul.  636;  Burgess  v.  Gun,  3  Har.  &  Johns.  225;  Smith's 
Merc.  Law  (Amer.  ed.),  308.  No  freight  is  due  before  the  com- 
mencement of  the  voyage,  and  no  lien  exists  therefor. 

The  case  of  the  plaintiffs  is  not,  therefore,  one  of  a  voyage  com- 
menced, and  a  subsequent  prevention  of  the  carriage  of  the  goods 
to  the  port  of  delivery  through  the  default  of  the  shipper.  It  is  a 
case  of  an  executory  contract  to  ship  goods,  which  the  shipper  refuses 
to  fulfil  on  his  part.  The  defendants  agreed  to  ship  on  board  the 
plaintiffs'  vessel  seventy-five  thousand  feet  of  lumber  for  California, 
and  to  pay  the  plaintiffs  a  stipulated  sum  for  the  same.  The  plain- 
tiffs aver  that  they  were  ready  to  perform  their  contract,  but  were 
prevented  by  the  acts  of  the  defendants.  Assuming  this  to  be  so, 
the  further  inquiry  is,  what  is  the  rule  of  damages  in  such  case  ? 

The  measure  of  damages  is  full  indemnity  for  all  they  have  lost 
through  the  default  of  the  shippers.  The  mode  of  ascertaining  the 
amount  of  damages  for  a  breach  of  an  executory  agreement  must,  of 
course,  differ  in  different  classes  of  cases.  If  it  were  a  contract  to 
employ  the  plaintiffs  to  build  a  house,  and  pay  them  an  agreed  price 
for  the  entire  work,  and  the  defendants  had  prevented  the  perform- 
ance, the  proper  rule  would  seem  to  be  the  difference  between  the 
sum  agreed  to  be  paid,  and  the  sum  that  it  would  have  cost  the 
plaintiffs  to  perform  the  contract.  That  rule  does  not  meet  the  cases 
of  contracts  for  freight,  as  they  are  generally  made.  It  does  not 
meet  the  case  of  a  vessel  engaged  in  carrying  merchandise  generally 
for  all  who  may  apply,  and  making  up  her  cargo  from  various  owners 
of  goods.     Such  ship  usually  must  sail  on  or  about  a  given  day,  to 


436  CAKRIEKS    OF   GOODS. 

fulfil  her  other  contracts,  thus  leaving  no  time  or  opportunity  to  fill 
up  the  deficient  cargo,  and  also  necessarily  incurring  all  the  expenses 
that  would  have  been  incident  to  the  voyage,  had  the  shipper  ful- 
filled his  particular  contract  to  furnish  a  certain  amount  of  goods 
for  the  voyage. 

On  the  other  hand,  if  the  shipper's  contract  were  to  fill  the  entire 
ship  with  his  goods  at  a  certain  freight,  upon  his  refusal  or  neglect 
to  fulfil  his  contract,  the  carrier  might  abandon  the  whole  voyage, 
and  engage  in  some  new  adventure  equally  or  more  profitable,  and 
thus  all  future  expenses  incident  to  the  first  voyage  be  saved.  Here 
it  is  quite  obvious  the  damages  would  be  much  less  than  in  the  case 
of  a  voyage  that  must  be  performed,  notwithstanding  the  failure  of 
a  single  individual  customer  to  ship  his  goods  according  to  contract. 

So,  too,  if  under  no  obligation  to  other  shippers  to  sail  at  a  given 
day,  or  if  that  day  was  so  remote,  and  the  demand  for  transporta- 
tion of  goods  such  as  to  afford  full  opportunity  to  fill  up  the  ship 
before  the  day  of  sailing,  these  circumstances  would  materially  affect 
the  amount  required  to  be  paid  by  the  shipper  to  the  carrier,  to 
indemnify  him  for  the  non-performance  of  the  contract  on  his  part. 

It  seems,  therefore,  proper  that  all  the  attendant  circumstances  be 
brought  before  the  jury  in  each  particular  case,  to  enable  them  to 
estimate  the  proper  sum  to  be  awarded  as  damages  for  a  breach  of 
contract  of  this  nature.  The  carrier  is  to  receive  full  indemnity  for 
the  breach  of  contract  on  the  part  of  the  shipper.  He  is  to  be  made 
as  good,  in  a  pecuniary  point  of  view,  as  if  the  shipper  had  furnished 
the  goods  according  to  his  contract,  if  the  carrier  has  been  guilty 
of  no  laches  as  to  substituting  other  freight,  or  adopting  other 
available  arrangement  to  mitigate  the  loss,  or  avoid  the  expenditure 
incident  to  the  proposed  voyage.  But  if  by  proper  and  reasonable 
efforts  he  can  substitute  other  goods,  he  is  bound  to  do  so,  and,  to 
the  extent  of  the  freight  thus  received,  this  should  go  in  reduction 
of  the  damages.  Xor  is  the  reduction  necessarily  confined  to  his 
receipts  from  goods  actually  substituted.  The  carrier  may  have 
Ijeen  remiss  in  his  attemjjts  to  fill  up  his  shi]),  or  have  neglected  to 
avail  himself  of  opportunities  presented  by  other  offers  of  goods, 
and  if  guilty  of  negligence  in  these  respects,  tliis  may  be  a  gnmnd 
for  a  deduction  from  the  entire  sum  stipulated  to  be  ]xii(l  by  a 
shipper  for  freight  of  certain  articles  which  were  not  furnished  to 
the  carrier. 

It  may  be  also  that  the  carrier  was  under  no  obligation  tf)  others 
to  prosecute  the  itrojmsed  voyage,  and  might  have  abandduod  it  for 
anotlier  and  more  profitable  emidoymcnt  of  his  ship;  and  in  such 
case  lie  .should  not  pursue  the  original  voyage  for  the  mere  purpose 
of  churning  the  defaulting  shipper  witli  the  gross  siim  he  stipulated 
to  i»ay  lor  tnmsporting  his  goods  to  a  distant  port. 

It  will  be  perceived,  therefore,  that  a  somewhat  broader  line  of 
defence  should  have  ht-vu   permitted   tr.  ih..   .I-Lndants,  than   that 


carrier's   COiMPENSATION. 


437 


prescribed  at  the  trial.  It  is  true  that  the  plaintiffs  are  entitled  to 
the  full  benefit  of  their  contract,  and  to  the  entire  damage  they  have 
sustained  through  the  default  of  the  defendants.  But  the  sum  the 
shippers  stipulated  to  pay  for  freight  is  subject  to  be  reduced  by 
money  actually  received  for  substituted  freight,  and  also  by  the 
amount  which  the  carrier  might  have  made,  had  he  availed  himself 
of  all  proper  opportunities  to  till  up  the  vacancy,  and  to  mitigate  the 
loss  that  would  attach  to  the  shipper  by  the  payment  of  the  entire 
sum  stipulated  to  be  paid  for  freight. 

See  on  this  subject,  Heckscher  v.  McCrea,24  Wend.  304;  Shannon 
V.  Comstock,  21  Wend.  457;  Costigan  v.  Mohawk  &  Hudson  River 
Railroad,  2  Denio,  610;  Abbott  on  Shipping,  411;  Sedgw.  Damages, 
3gj[  jS'ew  trial  ordered. 

A  new  trial  was  had  at  this  term  and  resulted  in  a  verdict  of 
$3,052.99  for  the  plaintiffs. 


SAYWARD  V.    STEVENS. 
3  Gray  (Mass.),  97.    1854. 

Assumpsit  to  recover  a  balance  due  for  freight  of  an  invoice  of 
lumber  from  Boston  to  San  Francisco. 

The  plaintiffs  gave  in  evidence  a  bill  of  lading  dated  at  Boston, 
January  18th,  1850,  and  signed  by  their  agent,  of  which  the  material 
part  was  as  follows :  "  Shipped  in  good  order  and  condition  by  Hiram 
Stevens  on  board  the  good  bark  '  Galileo, '  Sutton,  master,  now  lying 
in  the  port  of  Boston,  and  bound  for  San  Francisco,  to  say,  1,900 
feet  boards,  planed  one  side;  11,089  feet  boards,  planed  two  sides, 
more  or  less;  eleven  packages  window  frames  and  sashes;  seven 
boxes  shingles;  two  boxes  hardware;  one  package  doors;  twelve 
doors;  four  kegs  nails;  one  package  sash  (skylight);  four  packages 
stair  stuff;  four  packages  nine  pieces  door  frames;  two  thousand 
clapboards;  four  packages  blinds;  two  hundred  and  forty-eight 
pieces  house  frame;  to  be  received  by  consignee  within  reach  of  the 
ship's  tackle  within  ten  days  after  arrival;  if  not  received,  the  cap- 
tain to  have  the  right  to  sell  them :"  "  And  are  to  be  delivered  in 
like  good  order  and  condition  at  the  aforesaid  port  of  San  Francisco 
(the  danger  of  the  seas  only  excepted)  unto  H.  Stevens  or  his  assigns, 
he  or  they  paying  freight  for  said  goods  $920.39,  and  five  per  cent 
primage  and  average  accustomed : "  "  Seven  boxes  of  shingles  on 
deck." 

There  was  also  evidence  of  the  following  facts :  All  the  articles 
named  in  the  bill  of  lading  were  received  by  the  plaintiffs  on  board 
the  bark  "Galileo"  at  Boston;  and  the  shingles,  as  well  as  some  of 


438  CARRIERS   OF   GOODS. 

the  packages  of  door  casings,  window  frames  and  sashes,  and  stair 
stuff,  and  a  portion  of  the  boards,  were  stowed  on  deck.  All  the 
articles  so  stowed  were  thrown  overboard  and  lost  by  stress  of 
weather.  The  remainder  of  the  invoice,  being  stowed  in  the  hold, 
arrived  in  safety  at  the  port  of  discharge.  Notice  was  immediately 
published  in  the  newspapers  to  consignees  to  receive  their  goods. 
After  waiting  thirty  days,  no  one  appearing  to  claim  these  goods, 
they  were  advertised  for  sale  at  public  auction,  by  the  description 
in  the  bill  of  lading,  the  plaintiffs'  agent  at  San  Francisco  not  know- 
ing that  the  whole  had  not  arrived  in  safety ;  and  they  were  sold, 
accordingly,  by  said  description,  except  the  boards,  which  were  sold 
by  the  foot.  The  proceeds  of  the  sale,  deducting  expenses,  were 
SG62.13,  which  were  credited  to  the  defendant  on  account  of  the 
freight.  Upon  delivery  of  the  goods,  the  loss  of  about  one  thousand 
feet  of  boards  and  of  the  other  articles  stowed  on  deck  was  ascer- 
tained; and  the  plaintiffs'  agent  settled  with  the  purchaser  for  this 
deficiency  by  repaying  him  the  sum  of  $75.  Goods  of  the  same 
kind  and  quality  as  those  lost  could  be  readily  i)urchased  at  San 
Francisco  at  that  time. 

The  plaintiffs  offered  to  prove  that  all  the  articles  stowed  on  deck 
were  so  stowed  with  tlie  defendant's  knowledge  and  assistance. 
But  the  judge  rejected  the  evidence,  and  ruled  that  the  bill  of  lad- 
ing expressed  the  contract  between  the  parties;  that,  in  the  absence 
of  any  fixed  usage  of  trade  to  carry  such  freight  in  a  particular  man- 
ner, the  obligation  of  the  carrier,  so  far  as  tlie  jdace  of  stowing  was 
concerned,  was  to  carry  safely,  excepting  perils  of  the  seas ;  and  that 
this  obligation  could  not  be  varied  by  parol  evidence  of  knowledge 
of  the  owner  of  the  goods  of  the  manner  in  which  they  were  stowed. 

The  defendant  offered  parol  evidence  that  the  several  articles 
named  in  tlie  bill  of  lading  were  originally  obtained  and  prepared 
and  fitted  for  one  hoiise,  and  intendt.'d  to  be  put  together  as  such  in 
San  Francisco.  To  this  evidence  the  plaintiff's  objected;  but  the 
judge  admitted  it,  and  instructed  the  jury  that  if  they  believed  that 
tlie  articles  enumerated  in  the  Ijill  of  lading  constituted  the  parts  of 
one  house,  and  the  portions  lost  were  lost  by  reason  of  their  being 
improperly  stowed  on  deck,  and  were  a  substantial  i)art  of  the  house, 
without  which  the  house  would  bo  wholly  incomplete,  and  of  no 
practical  utility  as  a  house,  in  short,  no  longer  the  article  which 
was  shijiped,  then,  tlie  freiglit  being  ]>ayabk'  on  the  whole  in  one 
f-ntire  sum,  tlie  plaintiffs  could  not  recover  freight  for  the  lumber 
actually  carried,  and  which  arrived  at  San  Francisco,  although  the 
lost  articles  could  be  easily  supplied  in  the  market  by  the  i)urchase 
of  others  of  like  character. 

The  jury  returned  a  verdict  fi)r  tlie  defendant,  and  the  plaintiffs 
alleged  exceptions. 

BioKLow,  J.  The  main  question  in  this  ca.se  arises  on  the  true 
interpretation  of  the  contract  between  the    i)arties,    by   which    the 


carrier's  compensation.  439 

plcaintiffs  agreed  to  convey  the  articles  enumerated  in  the  bill  of 
lading  from  Boston  to  San  Francisco.  To  arrive  at  this,  it  is  neces- 
sary in  the  outset  to  determine  whether  this  contract  rests  solely  in 
the  bill  of  lading,  and  is  to  depend  upon  the  terms  by  which  it  is 
therein  set  forth,  or  whether  it  can  be  varied  or  explained  by  parol 
proof  of  the  acts  and  conduct  of  the  parties  prior  to  and  at  the  time 
of  the  shipment  of  the  merchandise. 

The  rule  is  well  settled,  that,  under  the  ordinary  forms  of  bills  of 
lading,  the  contract  imports  that  goods  are  to  be  stowed  under  deck; 
and  if  carried  on  deck,  the  owners  of  the  vessel  will  not  be  protected 
from  liability  for  their  injury  or  loss,  by  the  usual  exception  of 
dangers  of  the  sea.  Abbott  on  Shipping  (5th  Amer.  ed.),  345,  note. 
Whether  this  is  a  mere  presumption,  arising  from  the  usual  mode 
of  conveying  merchandise  in  vessels,  and  therefore  liable  to  be 
rebutted  in  a  particular  case  by  proof  of  a  parol  contract  between 
the  owners  of  the  vessel  and  the  shipper  that  the  goods  were  to  be 
carried  on  deck,  or  by  evidence  of  circumstances  from  which  such 
agreement  might  be  properly  inferred,  such  as  usage  affecting  a  par- 
ticular trade  or  certain  kinds  of  merchandise,  we  have  no  occasion 
in  the  present  case  to  determine.  It  may,  however,  be  remarked, 
that  as  bills  of  lading  do  not  usually  contain  any  express  stipulation 
concerning  the  place  or  mode  of  stowing  the  cargo,  these  being  left 
to  the  care  and  discretion  of  the  master  of  a  vessel,  the  admission  of 
such  evidence  would  not  seem  to  be  a  violation  of  the  salutary  rule 
that  written  contract  cannot  be  varied  or  controlled  by  parol  proof.    , 

In  the  present  case,  the  bill  of  lading  is  not  in  the  usual  form. 
It  contains  an  express  agreement  or  memorandum  in  writing  con- 
cerning the  stowage  of  a  portion  of  the  articles  shipped,  which  takes 
it  out  of  any  special  rule  applicable  to  contracts  of  this  nature,  and 
brings  it  within  the  general  rule  by  which  all  contracts  in  writing 
are  governed.  The  memorandum  is  in  these  words :  "  Seven  boxes 
of  shingles  on  deck."  The  effect  of  this  stipulation  clearly  is,  that 
the  parties  are  not  by  their  contract  left  to  the  ordinary  presump- 
tion concerning  the  stowage  of  the  cargo,  nor  to  the  usage  of  trade 
by  which  it  may  have  been  regulated.  They  have  made  it  matter 
of  express  agreement.  Looking  at  the  nature  of  the  contract,  and 
taking  into  view  not  only  what  the  parties  have  expressly  stipulated, 
but  also  the  general  duty  of  the  carrier  to  stow  and  carry  under  deck 
merchandise  destined  for  a  long  voyage  to  a  distant  port,  we  think 
the  bill  of  lading  in  this  case  is  equivalent  to  an  express  agreement 
that  the  seven  boxes  of  shingles  should  be  carried  on  deck,  and  the 
residue  of  the  shipment  should  be  stowed  under  deck.  In  order  to 
give  any  effect  to  the  written  memorandum,  it  necessarily  imports 
that  no  part  of  the  merchandise  specified  in  the  bill  of  lading  is  to 
be  carried  on  deck,  except  the  articles  expressly  included  within  it. 
To  a  contract  thus  expressed,  the  maxim  expressio  unius  exclusio 
alterius   is    peculiarly   applicable.      The   only   fair   and   legitimate 


440  CARRIERS   OF    GOODS. 

inference  from  the  terms  of  the  contract  is,  that  tlie  parties,  before 
reducing  their  agreement  to  writing,  conferred  together  concerning 
the  stowage  of  the  cargo,  and,  as  a  result  of  their  ultimate  inten- 
tion, stipulated  that  only  the  seven  boxes  of  shingles  should  be  car- 
ried on  deck.  In  this  view,  it  is  very  clear  that  the  parol  proof 
offered  at  the  trial  tended  directly  to  vary  the  terms  of  the  written 
agreement,  and  was  therefore  rightly  rejected. 

The  more  important  question  in  the  case  arises  upon  the  true  con- 
struction of  the  contract  of  shipment,  as  it  is  expressed  in  the  bill 
of  lading.  The  general  rule  is,  that  all  contracts  for  the  conveyance 
and  delivery  of  merchandise  for  an  agreed  price  are  in  their  nature 
entire  and  indivisible;  and  unless  comjiletely  performed  b}-  the 
carrier,  he  is  not  entitled  to  any  compensation.  The  undertaking  is 
not  only  to  carry  the  goods  to  a  particular  destination,  but  it  also 
includes  the  duty  of  delivering  them  in  safety;  and  no  freight  is 
earned  until  the  contract  for  delivery,  as  well  as  of  carriage,  is  com- 
pletely fulfilled.  Chit.  Con.  (8th  Amer.  ed.),  C3G;  Angell  on 
Carriers,  §  397. 

There  are  exceptions  to  this  general  rule,  founded  on  principles 
of  justice  and  equity,  arising  out  of  particular  circumstances;  but 
the  rule  itself  is  elementary,  and  lies  at  the  foundation  of  this 
species  of  contract.  Indeed,  the  definition  of  a  bill  of  lading,  as 
given  by  high  authority,  is,  that  it  is  the  written  evidence  of  a  con- 
tract for  the  carriage  and  delivery  of  goods  sent  by  sea,  for  a  certain 
freight.  Its  peculiarity  is,  that  unless  freight  is  wholly  earned  by 
a  strict  performance  of  the  voyage,  no  freight  is  due  or  recoverable. 
The  contract  of  the  carrier  is  indivisible,  and  he  can  recover  for  no 
portion  of  the  voyage  that  has  been  made,  until  the  whole  is  finished 
and  the  goods  have  reached  their  destination.  ]\Iason  r.  Lickbarrow, 
1  H.  Bl.  359;  Angell  on  Carriers,  §  39S.  The  operation  of  this 
rule  is  sometimes  hard  and  inequitable.  For  this  reason,  courts  of 
law  have,  in  many  cases,  readily  seized  upon  any  features  in  con- 
tracts for  transportation  from  which  it  could  be  fairly  inferred  that 
the  parties  intended  to  make  them  divisil)le  and  ai)])ortionable; 
while  in  other  cases  they  have  given  such  interpretation  to  the  acts 
of  parties  as  to  substitute,  in  the  place  of  the  original  entire  con- 
tract, a  new  agreement,  by  which  the  shii)per  became  bound  to  pay 
a  proportional  freight,  altliough  the  carrier  had  not  fulfilled  the 
wliole  of  tlie  original  contract  on  liis  part.  Witliin  the  former  class 
of  cases  are  comi)rehended  all  contracts  of  affreightment  l»y  charter- 
j.arty  or  bills  of  lading,  where  the  freight  is  payable  by  the  ton,  by 
admeasurement,  by  the  package  or  barrel,  or  where  different  por- 
tions of  the  same  cargo  are  sliii)ped  ujton  distinct  and  separate  terms 
as  i(,  freight.  In  all  such  cases,  it  is  lield  tliat  the  delivery  of  the 
cargTi  in  in  its  nature  divisible,  and  the  contract  itself  furnishes  the 
iMf-ans  and  the  measure  of  apportioning  the  freight  according  to 
the  »iuantity  of  the  cargo  actually  delivered.      Abbott  on  Shii-i-ing, 


carrier's  compensation.  441 

266;  Eitchie  v.  Atkinson,  10  East,  29o.  Within  the  latter  class 
are  included  all  cases  where  the  shipper  or  consignee,  by  a  volun- 
tary acceptance  of  his  goods  at  an  intermediate  port,  or  by  a  receipt 
of  a  portion  of  an  entire  shipment  at  the  place  of  destination,  is 
held  to  have  waived  the  full  performance  of  the  original  contract, 
and  to  be  liable  piv  rata  for  the  carriage  of  the  goods  actually 
received  by  him.  Abbott  on  Shipping,  406;  Ship  "Nathaniel 
Hooper,"  3  Sumner,  550,  551. 

Upon  examination  of  the  contract  in  the  present  case,  it  seems  to 
us  ver}'  clear  that  the  contract  is  an  entire  one,  and  does  not  fall 
within  any  of  the  cases  which  authorize  an  apportionment  of  the 
freight.  It  is  an  agreement  to  transport  a  certain  number  of  articles 
from  Boston  to  San  Francisco  for  an  entire,  aggregate  sum  as  freight. 
On  the  part  of  the  owners  of  the  vessel,  it  is  an  agreement  to  carry 
and  deliver  all  the  articles  enumerated  in  the  bill  of  lading,  for 
which  the  shipper  agrees  to  pay  and  they  agree  to  receive  a  sum  in 
gross.  The  agreement  to  carry  and  deliver  goes  to  the  whole  con- 
sideration to  be  paid  therefor.  They  are  mutual  agreements,  but 
that  of  the  owners  of  the  vessel  is  precedent  to  that  of  the  shipper. 
The  entire  carriage  and  delivery  were  to  be  performed  before  any 
title  to  the  freight-money  accrued  to  the  owners.  Such  is  the  legal 
construction  of  the  usual  contract  for  the  carriage  of  goods.  That 
it  is  the  necessary  interpretation  of  the  contract  of  the  parties  in  the 
present  case  results  not  only  from  the  entirety  of  the  consideration, 
but  also  from  the  nature  of  the  merchandise  comprised  in  the  ship- 
ment. If  it  had  been  a  contract  for  the  transportation  of  a  cargo  of 
similar  and  homogeneous  articles,  for  an  entire  sum  in  gross,  it  might 
have  been  urged  with  some  plausibility  that  the  parties  contem- 
plated an  apportionment  of  freight,  in  case  of  disaster  or  other 
cause,  by  reason  of  which  a  portion  of  the  cargo  might  fail  to  reach 
its  place  of  destination.  If,  for  instance,  a  hundred  barrels  of  flour 
were  shipped  under  a  bill  of  lading,  by  which  it  was  stipulated  that 
the  freight  to  be  paid  therefor  should  be  five  hundred  dollars;  in 
such  case ,  the  delivery  of  an  aliquot  part  thereof  at  the  place  of 
destination,  forming  a  certain  specific  and  definite  proportion  of  the 
entire  invoice,  would  furnish  the  basis  of  an  accurate  division  and 
apportionment  of  the  entire  freight-money,  according  to  the  amount 
actually  carried  and  delivered.  But,  in  the  case  at  bar,  the  ship- 
ment is  made  up  of  a  variety  of  miscellaneous  and  diverse  articles, 
unlike  in  kind,  quality,  and  value,  incapable  of  being  packed  and 
stowed  together,  and  bearing  no  definite  proportion  to  each  other  in 
size  or  in  cost  of  transportation.  Having  reference,  therefore,  to 
the  nature  of  the  shipment,  as  well  as  to  the  consideration  agreed  to 
be  paid  for  the  carriage  of  the  articles,  it  is  manifest  that  the  con- 
tract affords  no  basis  by  which  to  divide  the  invoice  and  apportion 
the  freight.  It  is  an  entire  invoice,  to  be  carried  for  an  entire  sum, 
incapable  of  apportionment;  and  where,  from  the  nature  of  the  con- 


442  CARRIEKS   OF   GOODS. 

tract   and   its  subject-matter,   it   is  fair  to  infer  that  the  parties 
intended  to  make  their  contract  one  and  indivisible. 

It  follows  as  a  necessary  consequence,  that  the  owners  of  the  ves- 
sel, if  they  failed  to  transport  and  deliver  the  whole  of  the  articles 
included  in  the  bill  of  lading,  by  reason  of  the  neglect  of  the  master, 
are  not  entitled  to  recover  the  balance  claimed  by  them  for  freight, 
unless  they  can  show  an  acceptance,  by  the  shipper  or  consignee  at 
San  Francisco,  of  that  portion  of  the  shipment  which  arrived  there 
in  safety,  and  thus  bring  themselves  within  the  second  class  of 
exceptions  above  stated  to  the  general  rule  governing  entire  con- 
tracts for  the  conveyance  of  merchandise.  The  case  finds  that  on 
the  arrival  of  the  vessel  at  its  port  of  discharge  no  one  appeared  to 
receive  or  claim  the  goods.  The  consignee,  owing,  probably,  to  the 
state  of  the  market  in  San  Francisco,  by  which  the  merchandise  was 
rendered  of  less  value  there  than  the  sum  agreed  to  be  paid  for  the 
freight,  failed  to  receive  it.  In  the  absence  of  an  express  stipula- 
tion in  the  bill  of  lading  to  meet  such  a  contingency,  it  might  have 
been  the  duty  of  the  master,  having  in  his  charge  an  invoice  of 
goods  not  perishable  in  their  nature,  to  store  them  for  the  benefit  of 
the  shippers.  It  is  doubtful  whether  he  would  have  had  the  right 
to  sell  them.  Abbott  on  Shipping  (5th  Amer,  ed.),  378,  note; 
Schooner  Cassius,  2  Story,  II.  81.  However  this  may  be,  in  the 
present  case  there  was  an  agreement  in  the  bill  of  lading  by  which 
it  was  stipulated  that  the  articles,  if  not  received  by  the  consignee 
on  the  day  after  their  arrival,  might  be  sold  by  the  master.  There 
was  therefore  no  receipt  of  the  goods  by  tlie  regular  consignee,  from 
which  an  accejjtance  of  them  can  be  inferred  to  charge  him  or  the 
shipper  a.  pro  rata  freight  thereon.  It  is  contended,  however,  by  the 
plaintiffs,  tliat  this  clause  in  the  bill  of  lading,  giving  the  master, 
by  reason  of  their  non-acceptance,  a  right  to  sell,  and  a  sale  by  him 
in  pursuance  of  it,  are  equivalent  to  a  receipt  of  the  articles  by  tlie 
consignee;  that  it  substituted  the  master  in  his  place,  and  conferred 
on  him  the  same  rights  and  powers  to  bind  the  shipper  as  his  agent, 
and  render  him  liable  for  the  freight  of  the  goods  sold  in  like  man- 
ner as  the  consignee  would  liave  been,  if  he  liad  taken  tlie  goods  on 
their  arrival.  But  it  a])pears  to  us  that  tliis  agreement  is  based  on 
too  broad  a  construction  of  this  clause  in  the  bill  of  lading.  The 
original  intent  of  the  parties  in  the  insertion  of  this  provision  for  a 
sale  of  the  goods,  was  to  give  tlie  master  the  right  to  realize  his 
freight-money  l)y  a  sale  of  the  goods,  if  they  were  not  received  and 
the  money  paid  within  the  time  s])ecified  in  the  l)ill  of  lading.  If 
this  w;is  the  object  of  the  clause,  then,  there  having  been  no  freiglit 
earned,  in  consequence  of  the  failure  to  carry  the  whole  shipment, 
tliere  was  no  right  on  the  part  of  tlx'  master  to  sell.  He  exceeded 
his  autliority  in  making  the  sale,  and  tlie  owners  cannot  bind  the 
shipper  by  an  unauthorized  act  of  their  master.  But  giving  to  this 
stipulation  the  most  liberal  construction  which   in  any  view   it  is 


carrier's  compensation.  443 

capable  of,  it  made  the  master  the  agent  of  both  parties  to  sell  the 
goods  for  the  benefit  of  whom  it  might  concern,  and  to  hold  the 
proceeds  for  those  who  should  be  legally  entitled  to  receive  them. 
It  created  a  special  and  limited  agency  only,  by  which  the  master 
had  the  right  to  convert  the  merchandise  into  money,  but  not  there- 
by to  change  the  right  of  property  in  the  proceeds,  or  to  waive  the 
legal  rights  of  the  parties  under  their  contract. 

We  are  therefore  of  opinion  that  the  contract  of  affreightment  in 
the  present  case  was  an  entire  one,  by  which  the  plaintiffs  under- 
took the  carriage  and  delivery  of  the  goods  specified  in  the  bill  of 
lading ;  and  a  portion  of  them  having  been  lost  through  the  fault 
of  the  master,  and  there  being  no  proof  of  an  acceptance  of  that 
portion  which  arrived  in  safety  by  the  shipper  or  any  authorized 
agent  in  his  behalf,  that  the  plaintiffs  are  not  entitled  to  recover  the 
balance  of  freight  claimed  to  be  due  by  them. 

It  is  urged  that  the  plaintiffs  were  entitled  to  their  freight,  because 
they  had  replaced  the  articles  lost  by  payment  to  the  purchasers  of 
a  sum  equivalent  to  their  value,  and  thus  virtually  made  good  the 
shipment  in  San  Francisco.  But  the  difficulty  in  this  argument  is 
that  the  master  had  no  authority  from  the  defendant  to  change  his 
rights  by  any  such  payment.  His  authority  was  confined  to  a  sale 
of  the  goods  which  arrived.  Beyond  that,  his  acts  could  in  no  way 
affect  the  defendant,  who,  if  he  had  been  present,  would  have  been 
entitled  to  the  goods  free  from  any  charge  for  freight. 

It  is  further  argued  that  the  owners  of  a  vessel  are  not  responsible 
for  mere  abstract  and  inconsequential  negligence  on  the  part  of  the 
master,  but  only  for  the  actual  results  of  his  faults  and  omissions. 
This  maybe  so;  but  it  does  not  help  the  plaintiffs  in  the  present 
case,  because  the  jury  have  found,  under  the  instructions  given  to 
them,  that  the  goods  were  lost  by  reason  of  their  being  improperly 
stowed  on  deck.  It  must  now,  therefore,  be  assumed  that  there  was 
actual  negligence  and  fault  on  the  part  of  the  agent  of  the  owners  by 
reason  of  which  they  failed  to  fulfil  their  contract. 

In  the  view  we  have  taken  of  this  case,  it  becomes  unnecessary  to 
decide  upon  the  admissibility  of  the  evidence  which  tended  to  show 
that  the  articles  shipped  were  parts  of  an  entire  structure,  intended 
to  be  erected  in  California.  It  is  quite  sufficient,  without  such 
proof,  that  they  formed  part  of  an  entire  subject-matter  in  the  con- 
tract; and  for  the  reasons  already  given,  not  having  been  delivered 
by  the  plaintiffs  according  to  their  agreement,  an  action  cannot  be 
maintained  for  the  freight-money. 

Exceptions  overruled. 

It  is  clear  that,  by  the  general  maritime  law,  freight,  whether  by 
charter-party  or  bill  of  lading,  is  due  only  for  articles  delivered. 
The  contract,  though  it  consists  of  two  parts,  is  necessarily  one, 
unless  otherwise  provided.     It  is  both  to  convey  and  deliver,  and  is 


444  CARRIERS    OF    GOODS. 

not  completed  until  the  delivery.  It  maybe  agreed  that  freight 
shall  be  paid  on  all  the  goods  received  on  board,  as  is  frequently 
donemth¥case~ofTivesl;ock,  which  is  much  exposed  in  the  trans- 
portation; but,  unless  the  parties  otherwise  agree,  freight  is  due 
only  for  that  which  is  delivered,  or  for  which  there  is  a  lawful 
excuse  for  non-delivery.  3  Kent,  Comm.  225,  226;  1  Pars.  Mar. 
Law,  142-219.  If  casks  or  boxes  in  which  goods  have  been  packed 
arrive  empty,  or  nearly  so,  so  that  the  goods  are  not  worth  the 
freight,  though  it  was  formerly  a  much-disputed  question,  it  is  now 
settted  that  they  cannot  be  abandoned  by  the  shipper  for  freight 
when  this  is  by  ordinary  leakage  or  the  natural  vice  of  the  articles. 
3  Kent,  Comm.  324;  1  Valin  Comm.  (370;  Toth.  Chart.  No.  57;  Abb. 
Ship.  (Am.  ed.),  433-435.  But  if  lost  not  by  ordinary  leakage,  but 
by  tlie  dangers  of  the  seas,  no  freight  is  due.  This  will  excuse  the 
carrier  from  paying  the  price  of  the  goods,  but  not  from  a  delivery. 
In  the  case  of  (jrdinary  leakage,  the  carrier  has  performed  his  con- 
tract, so  far  as  depended  on  him;  in  the  latter  his  contract  is  to 
carry  and  deliver  the  goods,  the  dangers  of  the  seas  excepted,  and 
as  he  is  prevented  from  a  delivery  by  these  dangers,  his  freight  is 
not  earned.     Ware,  D.  J.,  in  The  Cuba,  3  Ware,  260. 


It  may  happen,  however,  that  goods  existing  in  specie  wheu 
brought  to  the  place  of  destination  are  so  deteriorated  in  condition 
as  not  to  be  worth  the  freight;  and  then  arises  the  question  whether 
the  merchant  is  bound  to  pay  the  freight,  or  is  at  liberty  to  abandon 
the  goods  to  the  shipowner  for  his  claim.  In  considering  it,  the 
causes  from  which  the  deterioration  in  the  merchandise  may  proceed 
must  be  distinguished.  If  it  proceeds  from  the  fault  of  the  masters 
or  mariners,  the  merchant  is  entitled  to  a  comjjensation  and  may 
recoverlt  against  the  owners  or  master.  On  the  otlier  hand,  if  the 
deterioration  proceeds  from  an  intrinsic  i)rinciple  of  decay  naturally 
inherent  in  the  commodity  itself,  whether  active  in  every  situation 
or  only  in  the  confinement  and  closeness  of  the  sliip,  the  mercliant 
must  bear  the  loss  and  pay  the  freiglit.  Tlie  master  and  owners  are 
in  no  fault;  nor  does  their  contract,  though  taken  as  tlie  contract  of 
common  carriers,  contain  an  insurance  or  guaranty  against  such  an 
event.  Maclachlan  on  Sliipping,  46i),  as  quoted  with  ai)pruval  in 
Seaman  v.  Adler,  37  F.d.  M.  26S. 


The  nnister  has  a  lien  on  the  property  to  enable  him  to  earn  liis 

freic?ht.     The  ra'oraent  the  transportation  begins,  the  lien  attaches, 

'\.  divested  so  long  as  tlie  master  is  jtrocecding  not  in  default. 

I'Tior  is  not  bouiid  to  pay  until  the  transportation  is  com- 

Liice  TvTUi  the  contract,  but  he  may  not  prevent  tl^ie 

iua  ,..  ..  ..W.......4  his  freight.     If  betakes  possession  of  the  goods 


carriek's  compensation.  445 

short  of  their  destination,  when  the  master,  not  in  default,  is  willing  , 
and  able  to  complete  the  transportation,  he  must  i)ay  full  freight.  . 
He  has  prevented  or  waived  the  performance  of  the  condition  prece- 
dent. The  law,  therefore,  regards  it  as  performed.  It  is  true  that 
in  this  case  the  performance  was  prevented  by  the  consignee,  and 
not  by  the  shipper;  but  in  this  respect  the  consignor  is  represented 
by  the  consignee,  and  the  former  is  responsible  for  the  acts  of  the 
latter.  The  consignor  has  done  his  full  duty  to  the  consignee  when 
he  has  paid  or  agreed  to  pay  freight  to  a  certain  point.  If  the  con- 
signee sees  fit  to  take  the  goods  at  some  other  place  when  the  trans- 
portation is  only  partially  completed,  and  when  the  master  is  able 
and  willing  to  perform  his  contract,  he,  the  consignee,  can  make  no 
claim  against  the  consignor,  and  the  latter  should  therefore  pay  the 
freight  which  the  master  was  able,  willing,  and  had  a  legal  right  to 
earn.  There  can  be  no  action  unless  delivery  is  either  made  or 
prevented"  from  being  made  by  the  act  or  fault  of  the  shipper  or 
consignee.  1  Pars.  Shipp.  &  Adm.  220.  Per  Corliss,  C.  J.,  in 
Braithwalt  v.  Power,  1  N.  Dak.,  455. 


WESTERN   TRANSP.    CO.    v.   HOYT. 
69  N.  Y.  230.     1877. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  second  judicial  department,  affirming  a  judgment  in  favor  of 
defendants,  entered  upon  an  order  nonsuiting  plaintiff  on  trial. 

This  action  was  brought  by  plaintiff  as  a  common  carrier  to  recover 

freight  and  charges  on  a  cargo  of  oats  alleged  to  have  been  trans- 

ported  for  and  delivered  to  defendants. 

"Plaintiff  received  the  oats  at  Buff'alo,  giving  the  following  bill  of 

lading  therefor :  — 

"Buffalo,  October  9th,  1869. 

"Shipped  by   Barclay,  Bruce,  &   Co.,  in  apparent  good  order,  on   board 

canal-boat  '  Clio,'  of  W.  T.  Co.  Line,  Captain ,  the  following  described 

property,  to  be  transported  to  the  place  of  destination,  without  unnecessary 
delay,  and  delivered  to  the  consignees,  in  like  good  order,  as  noted  below  iu 
the  customary  manner,  free  of  lighterage,  upon  payment  of  freight  and 
charges,  as  prescribed  in  this  bill.  Consignees  to  pay  all  harbor  towing, 
from  and  to  the  usual  place  of  landing.  Three  week-days,  regardless  of 
weather  after  arrival,  and  notice  of  same,  to  be  allowed  consignees  to  dis- 
cEarge  this  cargo,  after  -which  time  the  cargo  or  consignees  are  to  pay  demur- 
■  rage,  at  the  rate  of  one  and  one-half  per  cent  per  day,  upon  the  freight, 
Including  tolls,  for  each  and  every  day  of  such  demurrage,  over  the  three 
days  as  above  specified,  until  the  cargo  is  fully  discharged.  All  damage, 
caused  by  the  boat  or  carrier,  or  deficiency  in  the  cargo,  from  quantity,  as 
herein  specified,  to  be  paid  for  by  the  carrier,  and  deducted  from  the  freight, 
and  any  excess  in  the  cargo  to  be  paid  for  to  the  carrier  by  the  consignees. 


440  CAKRIEKS   OF   GOODS. 

In  case  g^ain  becomes  heated  while  in  transit,  the  carrier  shall  deliver  his 
entire  cargo,  and  pay  only  for  any  deficiency,  caused  by  heating,  exceeding 
five  bushels,  for  each  one  thousand  bushels.  The  freight,  charges,  and  de- 
murrage, payable  to or  order,  at  the  place  of  destination,  who  is  the 

only  party  authorized  to  collect  the  same,  and  whose  receipt  shall  be  in  full. 
for  all  demands  on  this  cargo  or  bill  of  lading. 

"  Tolls  on  this  cargo. having  been  advanced  by  shippers,  if  refunded,  must 
be  to  them  or  their  order. 

"  Ace.  Geo.  Ellison,  1 1.G50  bush.  No.  2  oats,  ex.  cargo. 

'•Care  Jesse  Hoyt  6<  Co.,  Ilk.  Pathfinder,  Canal. 

"  New  York,  Frt.  Buff,  to  N.  Y.,  10. 

"  Lake  frt.  and  Buff.  Chgs.,  .5f  —  842.38. 

"  Subject  to  Barclay,  Bruce,  &  Co.'s  sight  draft  on  ISIessrs.  Jesse  Hoyt  &  Co., 
New  Y'ork,  for  fifty-six  hundred  and  three  0:5-100  dollars  for  advances. 

'The  W.  T.  Co., 

"G.  P.  Morgan." 

The  boat  with  the  oats  arrived  safely  at  New  York,  Friday, 
November  oth,  1SG9,  aud  notice  thereof  was  given  to  the  consignees 
on  tlie  same  day  at  ten  minutes  past  twelve.  On  the  next  day,  and 
on  Monday,  defendants  were  requested  to  give  the  boat  despatch, 
and  on  Tuesday,  the  9th  November,  they  were  notified  that  unless 
the  cargo  was  discharged  it  would  be  put  in  store.  On  the  Oth, 
5,000  bushels  were  removed  from  tlie  boat  by  an  elevator  procured  by 
defendants.  After  tlie  delivery  of  that  amount,  the  elevator  stojjped. 
PlaintifTs  agent  thereupon  directed  that  if  the  boat  was  not  dis- 
charged by  six  P.M.  to  take  it  to  store.  At  about  that  hour,  it  not 
having  been  discharged,  it  was  by  plaintiff's  order  taken  to  Brooklyn, 
and  the  oats  stored  with  one  Barber,  a  warehouseman.  In  IMarch, 
1871,  Barber  delivered  the  possession  of  the  oats  to  defendants  upon 
their  demand,  they  indemnifying  against  any  claim  of  the  plaintiff. 

Further  facts  appear  in  the  opinion. 

Curiicn,  Ch.  J.  The  decision  in  tlie  case  of  the  present  plaintiff 
against  Barber,  5G  N.  Y.  544,  disj)oses  of  some  of  tlie  questions 
involved  in  this  case.  That  was  an  action  for  conversion  against 
the  warehouseman  for  delivering  the  oats  to  the  defendants,  and  it 
was  there  held  that  the  proper  construction  of  the  bill  of  lading  was 
to  give  the  defendants,  who  were  consignees,  tliroe  full  week-days 
to  discliarge  the  cargf),  and  such  reasonable  time  after  that  jtoriod  as 
the  circumstances  might  require,  upon  paying  the  specified  demur- 
rage, but  that  the  carrier  miglit  terminate  this  additional  privilege 
or  right  by  a  proper  notice.  It  a])))ears  in  this,  as  in  that  case,  that 
notice  of  the  arrival  of  a  boat,  "Clio,"  was  given  to  the  consignees, 
on  Friday,  at  ten  minutes  past  twelve,  and  it  was  not  disputed  on 
the  trial  that  when  the  notice  is  after  twelve  o'clock,  that  day  is  not 
to  be  counted  as  any  part  of  the  three  days  gh'en  absolutely  for  the 
UiHcli.ircro  f»f  the  cargo,  ;ind  it  appeared,  and  seems  nf)t  to  have  boen 
d  that  the  throe  days  would  not  expire  until  Tuesday  night 

.1'  "'fdock.     We  held  that  tin-  act  of  ihr  cnrricr  in  lemoving 


carkier's  compensation.  447 

his  boat,  and  storing  tlie  grain  elsewhere,  on  Tuesday,  prior  to  the 
expiration  of  the  three  days,  was  wrongful,  and  amounted  to  a  con- 
version, and  deprived  him  of  his  lieu  for  freight.  The  case  was  not 
materially  changed  in  this  respect  upon  the  trial  of  this  action. 
The  notice  which  was  claimed  to  have  been  given  was  given  on 
Tuesday  morning,  to  the  effect  that  unless  the  cargo  was  discharged 
on  that  day  the  oats  would  be  stored.  Such  a  notice  would  not 
relieve  the  plaintiff  from  the  consequences  of  his  wrongful  act  in 
storing  the  oats,  for  the  reason  that  the  day  extended,  as  was  proved, 
to  midnight,  and  the  plaintiff  violated  the  notice  by  removing  tlie 
boat  several  hours  previously.  He  could  not  by  a  notice  shorten 
the  time  fixed  by  the  contract  itself.  The  construction  of  the  bill 
of  lading,  the  character  of  the  act  of  the  plaintiff  in  storing  the  oats, 
and  the  effect  of  the  act  upon  its  rights  to  a  lieu  for  freight  must  be 
regarded  as  adjudged  and  settled  in  the  case  referred  to. 

Other  questions  are  presented  upon  this  appeal,  which  must  be 
considered.  About  5,000  of  the  14,000  bushels  of  the  oats  were 
removed  from  the  boat  by  the  elevator  procured  by  the  defendants, 
and  the  remainder  were  stored  in  Barber's  warehouse.  Subsequently, 
the  defendants  demanded  and  obtained  possession  of  the  oats  from 
Barber  upon  giving  him  indemnity  against  any  claim  of  plaintiff  for 
freight  or  for  the  oats.  It  is  urged  that  the  defendants  taking  pos- 
session of  the  property  entitled  the  plaintiff  to  the  freight.  There 
"is  some  apparent  plausibility  in  equity  in  this  position,  but  it  must 
be  observed  that  a^eliyeryjio  the  consignees  is  as  much  a  part  of 
the  contract  as  the  transportation.  Mr.  Angell,  in  his  work  on  car- 
riers, says :  "  It  is  not  enough  that  the  goods  be  carried  in  safety  to 
the  place  of  delivery,  but  the  carrier  must,  without  any  demand 
upon  him,  deliver,  and  he  is  not  entitled  to  freight  until  the  contract 
for  a  complete  delivery  is  performed."  §  282.  When  the  responsi- 
bility has  begun,  it  continues  until  there  has  been  a  due  delivery  by 
the  carrier.  Id.,  note  1,  and  cases  cited.  Parsons  on  Shipping, 
220.  And. jn  this  case,  the  bill  of  lading  expressly  requires  the 
property  to  be  transported  and  delivered  to  the  consignees.  The 
delivery  was  as  essential  to  performance  as  transportation  to  New 
York,  and  it  is  a  substantial  part  of  the  contract.  The  plaintiff 
might  as  well,  in  a  legal  view,  have  stopped  at  Albany,  or  any  other 
intermediate  port,  and  stored  the  grain,  as  to  have  stored  it  in 
Brooklyn.  In  either  case  he  could  not  aver  a  full  performance,  nor 
that  he  was  prevented  by  the  defendants  from  performing.  It  fol- 
lows that  he  cannot  recover  upon  the  contract.  Performance  is  a 
condition  precedent  to  a  recovery.  As  said  by  Lord  Ellenborough 
in  Liddard  v.  Lopes,  10  East,  526,  "  The  parties  have  entered  into  a 
special  contract  by  which  freight  is  made  payable  in  one  event  only, 
that  of  a  right  delivery  of  the  cargo  according  to  the  terms  of  the 
contract,  and  that  event  has  not  taken  place,  there  has  been  no  such 
delivery,  and  consequently  the  plaintiff  is  not  entitled  to  recover." 


448  CAKKIERS   OF    GOODS. 

As  the  plaintiff  cannot  recover  under  the  contract,  if  he  has  any 
claim  for  freight  it  is  only  for  pro  rata  freight,  which  is  sometimes 
allowed,  when  the  transi^ortatiou  has  been  interrupted  or  prevented 
"by  stress  of  weather  or  other  cause.  In  such  a  case,  if  the  freighter 
or  his  consignee  is  willing  to  dispense  with  the  performance  of  the 
whole  voyage,  and  voluntarily  accept  the  goods  before  the  complete 
service  is  rendered^  a  proportionate  amount  of  freight  will  be  due 
as  "freight  2>ro  rata  iti/wrls."  This  principle  was  derived  from  the 
marine  law,  and  it  is  said  tliat  the  common  law  presumes  a  promise 
to  that  effect  as  being  made  by  the  party  who  consents  to  accept  his 
goods  at  a  place  short  of  the  port  of  destination,  for  he  obtains  his 
property  with  the  advantage  of  the  carriage  thus  far.  The  principle 
is  based  upon  the  idea  of  a  new  contract,  and  not  upon  tlie  right  to 
recover  upon  the  original  contract.  The  application  of  this  principle 
has  been  considerably  modified  by  the  courts.  In  the  early  case  of 
Luke  V.  Lyde,  2  Burr.  889,  a  contract  was  inferred  from  the  fact  of 
acceptance,  and  the  rule  was  enunciated  without  qualification  that 
from  such  fact,  witliout  regard  to  the  circumstances,  and  whether 
the  acceptance  was  voluntary  or  from  necessity,  a  new  contract  to 
pay  pro  rata  freight  might  be  inferred.  Some  later  English  cases, 
and  the  earlier  American  cases,  apparently  followed  this  rule;  but 
thf  rule  h.\s  been  in  both  countries  materially  modified,  and  it  is 
now  held  that  taking  possession  from  necessity  to  save  the  property 
from  destruction,  or  in  consequence  of  the  wrongful  act  of  the 
freighter,  as  in  Hunter  v.  Prinsey,  10  East,  394,  and  in  13  M.  & 
Wels.  2i,'9,  where  the  master  caused  the  goods  to  be  sold,  or  when 
the  carrier  refused  to  complete  the  performance  of  his  contract,  the 
carrier  is  not  entitled  to  any  freight.  Parke,  B.,  in  the  last  case, 
stated  the  rule  with  approval,  that  to  justify  a  claim  for  ^^ro  rata 
freight  there  must  be  a  voluntary  acceptance  of  the  goods  at  an 
intermediate  port,  in  such  a  mode  as  to  raise  a  fair  inference  tliat 
the  further  carriage  of  the  goods  was  intentionally  dispensed  witli; 
and  Lord  Ellenborough,  in  Hunter  v.  Prinsey,  siijira,  said:  "The 
general  property  in  the  goods  is  in  the  freighter;  the  shipowner 
has  no  right  to  withhold  the  possession  from  him  unless  he  has 
either  eanu-d  his  frt-iglit  or  is  going  to  earn  it.  If  no  freight  be 
earned,  and  lie  decline  i)roc»'eding  to  earn  any,  tlie  freighter  lias  a 
right  to  the  possession." 

Thompson,  Ch.  J.,  in  15  J.  li.  12,  said:  "If  tlie  shipowner  will 
not  or  cannot  carry  on  the  cargo,  the  freighter  is  entitled  to  receive 
his  goods  without  paying  freight."  It  was  unnecessary  to  review 
the  authorities.  Tlic  8ul)ject  is  considered  in  Angell  on  Carriers, 
5  402  to  409,  and  Aljbott  on  .Shipi)ing,  oth  Am.  ed.  547,  and  in  the 
notes  and  numerotjs  cases  referred  to,  and  the  rule  as  above  stated 
HfiMim  to  liave  been  goni-rally  adopted  by  nearly  all  the  recent 
di'f  1  its  manifest  justice  commends  itself  to  our  judgnif^iit. 

In  '  :io  inference  of  a  promise  to  ]iny  />ro  rata  or  any  l'n'i;.Oit 


carrier's  compensation.  449 

can  be  drawn.  The  circumstances  strongly  repel  any  such  inten- 
tion. The  carrier  doubtless  acted  in  accordance  with  what  it  believed 
to  be  its  legal  rights ,  but  the  act  of  storing  was  a  refusal  to  deliver, 
and,  as  we  held  in  the  Barber  case,  supra,  a  wrongful  act  amounting 
to  conversion,  quite  equal  in  effect  to  the  sale  of  the  goods  in  the 
cases  cited.  The  carrier  must  therefore  be  regarded  as  refusing  to 
deliver  the  oats.  Neither  the  owner  nor  his  consignee  intended  to 
waive  a  full  performance  or  to  assume  voluntarily  to  relieve  the 
plaintiff  from  non-performance.  They  claimed  the  possession  of 
the  property  and  the  right  to  possession  discharged  from  all  claim 
for  freight,  and  indemnified  the  warehouseman  against  such  claim. 
Every  circumstance  repels  the  idea  of  a  promise  to  pay^>;-o  rata  freight. 
The  case  stands,  therefore,  unembarrassed  by  the  circumstance  that 
the  consignee  took  possession  of  the  property  under  the  circumstances, 
and  it  presents  the  ordinary  case  of  an  action  on  contract  where  the 
party  seeking  to  enforce  it  has  not  shown  a  full  performance. 

The  next  question  is,  whether  the  plaintiff  is  entitled  to  freight 
upon  the  5,000  bushels  delivered.  The  contract  for  freight  is  an 
entirety,  and  this  applies  as  well  to  a  delivery  of  the  whole  quantity 
of  goods  as  to  a  delivery  at  all,  or  as  to  a  full  transportation.  Par- 
sons on  Shipping,  204.  There  are  cases  where  this  rule  as  to  quan- 
tity has  been  qualified,  but  they  have,  I  think,  no  application  to  the 
present  case.  The  delivery  of  the  5,000  bushels  was  made  with  the 
understanding  and  expectation  that  the  whole  quantity  was  to  be 
delivered,  and  no  inference  can  be  drawn  of  an  intention  to  pay 
freight  in  part  without  a  delivery  of  the  whole.  The  quantity 
delivered  must  be  regarded  as  having  been  received  subject  to  the 
delivery  of  the  whole  cargo.  There  was  no  waiver.  The  principle 
involved  is  analogous  to  a  part  delivery  from  time  to  time  of  per- 
sonal property  sold  and  required  to  be  delivered.  If  the  whole  is 
not  delivered,  no  recovery  can  be  had  for  that  portion  delivered. 
18  Wend.  187;  13  J.  E.  94;  24  N.  Y.  317. 

The  claim  for  lake  and  Buffalo  charges  stands,  I  think,  upon  a 
different  footing.  These  are  stated  in  the  bill  of  lading  at  5|  cents 
a  bushel,  amounting  to  $842.38.  It  must  be  presumed,  as  the  case 
appears,  that  the  plaintiff  advanced  these  charges;  and,  if  so,  it 
becomes  subrogated  to  the  rights  of  the  antecedent  carrier.  The 
claim  for  these  charges  was  complete  when  the  plaintiff  received  the 
property  to  transport,  and  was  not  merged  in  the  condition  requir- 
ing the  performance  of  the  contract  by  the  plaintiff  to  transport  the 
property  from  Buffalo.  That  contract  was  independent  of  this 
claim.  The  bill  of  lading  is  for  transportation  and  delivery  upon 
payment  of  freight  and  charges ;  but  if  the  plaintiff  had  a  right  to 
demand  any  part  of  the  charges  independent  of  the  bill  of  lading, 
that  instrument  would  not  deprive  him  of  such  right.  We  have 
been  referred  to  no  authority  making  a  liability  upon  such  an  ad- 
vance dependent  upon  the  performance  of  the  contract  for  subse- 

29 


450  CARRIERS   OF    GOODS. 

quent  carriage.  If  the  action  bad  been  by  the  lake  carrier  to 
recover  for  the  freight  to  Buffalo,  it  is  very  clear  that  the  defend- 
ants could  uot  have  interposed  as  a  defence  that  the  carrier  from 
Buffalo  had  not  performed;  and  why  is  uot  the  plaintiff  entitled  to 
the  same  rights  in  respect  to  this  claim  as  the  former  carrier? 

I  am  unable  to  answer  this  question   satisfactorily,  as  the  case 
now  appears. 

If  these  views  are  correct,  a  nonsuit  was  improper,   and  there 
must  be  a  new  trial  with  costs  to  abide  event. 

Judgment  reversed. 


WOOSTER   V.    TARE. 
8  Allen  (Mass.),  270.     1SG4. 

Contract  to  recover  for  the  carriage  of  mackerel  from  Halifax 
to  Boston. 

It  was  agreed  in  the  Superior  Court  that  the  defendants  shi])ped 
the  mackerel  at  Halifax,  upon  a  vessel  of  which  tlie  plaintiffs  were 
part  owners,  said  Wooster  being  master,  under  a  bill  of  lading  in 
the  usual  form,  to  be  delivered  at  Boston  "unto  ^lessrs.  R.  A.  Howes 
&  Co.,  or  to  their  assigns,  he  or  they  paying  freight  for  said  goods," 
etc.  On  the  arrival  of  the  vessel  at  Boston,  Wooster  was  informed 
by  Howes  &  Co.  that  the  mackerel  liad  been  sold  "to  arrive,"  to  a 
person  to  whom  they  requested  him  to  deliver  them.  The  mackerel 
were  accordingly  delivered, and  payment  demanded  of  Howes  &i  Co., 
but  refused.  Howes  &  Co,  were  then  and  still  are  insolvent.  The 
mackerel,  at  the  time  of  their  delivery  on  board  the  vessel,  had  been 
purchased  and  i)aid  for  by  the  defendants  for  and  on  account  of 
Howes  &  Co.,  at  whose  risk  tliey  were  after  shipment;  but  this  fact 
was  unknown  to  the  plaintiffs.  The  mackerel  were  entered  at  the 
custom-house  in  Halifax  in  the  name  of  the  defendants. 

Upon  these  facts  judgment  was  rendered  for  the  plaintiffs,  and 
the  defendants  appealed  to  this  court. 

BiGELOW,  C.  J.  The  question  raised  in  this  case  is  very  fully 
di.scussed  in  Blanchard  v.  ]\ige,  8  Gray,  2S1,  2sr.,  L>'.)()-205.  It  is 
there  stated  to  be  the  settled  doctrine  that  a  bill  of  lading  is  a 
written  simple  contract  between  a  shi})per  of  goods  and  the  sliip- 
owner;  the  latter  to  carry  the  goods,  and  the  former  to  pay  the 
stipulated  compensation  when  the  service  is  performed.  Of  the  cor- 
rectness of  this  statement  tliere  can  be  no  doubt.  The  shipper  or 
consignor,  whether  the  owner  of  tlie  goods  shipped  or  not,  is  tlie 
j)arty  with  whom  the  owner  or  niasti-r  enters  into  tlie  contract  of 
affreightment.  It  is  he  that  makes  the  bailment  of  the  goods  to  be 
carried,  and,  as  the  bailor,  he  is  liable  for  the  compensation  to  be 
paid  therefor.     The  dictum  of  I'aylfj-,  .1.,   in   Mctorsoni  f.   Kyinor, 


carrier's  compensation.  451 

2  M.  &  S.  318,  subsequently  repeated  by  Lord  Tenterden  in  Drew  v. 
Bird,  Mood.  &  Malk.  156,  that  in  the  absence  of  an  express  contract 
by  the  shipper  to  pay  freight,  when  the  goods  are  by  the  bill  of  lad- 
ing to  be  delivered  on  payment  of  freight  by  the  consignee,  no 
recourse  can  be  had  for  the  price  of  the  carriage  to  the  shipper,  has 
been  distinctly  repudiated,  and  cannot  be  regarded  as  a  correct 
statement  of  the  law.  Sanders  v.  Van  Zeller,  4  Q.  B.  260,  284; 
Maclachlan  on  Shipping,  426. 

It  is  contended,  on  the  part  of  the  defendants,  that  the  omission 
of  the  master  to  collect  the  freight  of  the  consignees  of  the  cargo  or 
their  assigns,  under  the  circumstances  stated,  was  a  breach  of  good 
faith  towards  the  shippers,  which  operates  as  an  estoppel  on  him 
and  the  other  owners  of  the  vessel,  whose  agent  he  was,  to  demand 
the  freight-money  of  the  defendants.  But  there  are  no  facts  on 
which  to  found  an  allegation  of  bad  faith  against  the  master.  He 
did  not  act  contrary  to  his  contract  or  inconsistent  with  his  duty 
towards  the  shippers.  It  is  true  that  he  omitted  to  enforce  his  lien 
on  the  cargo  for  the  freight,  by  delivering  it  without  insisting  on 
payment  thereof  by  the  consignees.  This  was  no  violation  of  any 
obligation  which  he  had  assumed  towards  the  defendants  as  shippers 
of  the  cargo.  A  master  is  not  bound  at  his  peril  to  enforce  payment 
of  freight  from  the  consignees.  The  usual  clause  in  bills  of  lading 
that  the  cargo  is  to  be  delivered  to  the  person  named  or  his  assignees, 
"he  or  they  paying  freight,"  is  only  inserted  as  a  recognition  or 
assertion  of  the  right  of  the  master  to  retain  the  goods  carried  until 
his  lien  is  satisfied  by  payment  of  the  freight,  but  it  imposes  no 
obligation  on  him  to  insist  on  payment  before  delivery  of  the  cargo. 
If  he  sees  fit  to  waive  his  right  of  lien  and  to  deliver  the  goods  with- 
out payment  of  the  freight,  his  right  to  resort  to  the  shipper  for 
compensation  still  remains.  Shepard  v.  De  Bernales,  13  East,  565; 
Domett  V.  Beckford,  5  B.  &  Ad.  521,  525;  Christy  v.  Row,  1  Taunt. 
300.  Although  the  receipt  of  the  cargo  under  a  bill  of  lading  in  the 
usual  form  is  evidence  from  which  a  contract  to  pay  the  freight- 
money  to  the  master  or  owner  may  be  inferred,  this  is  only  a  cumu- 
lative or  additional  remedy,  which  does  not  take  away  or  impair  the 
right  to  resort  to  the  shipper  on  the  original  contract  of  bailment 
for  the  compensation  due  for  the  carriage  of  the  goods. 

Judgment  for  the  plaintiffs. 


MEEIAN  V.  FUNCK. 

4  Denio  (N.  Y.  Sup.  Ct.),  110.    1847. 

Error  to  the  Superior  Court  of  the  city  of  New  York.  Funck 
and  the  other  defendants  in  error  sued  Merian  &  Benard  in  the  court 
below,  in  assumpsit^  for  freight  and  primage  on  a  quantity  of  goods 


452  CAURIERS    OF    GOODS. 

shipped  at  Havre,  and  brought  to  the  port  of  Xew  York  in  the  packet- 
ship  "Baltimore,"  of  which  the  plaintiffs  were  the  owners.  The 
first  parcel,  consisting  of  nine  packages,  was  received  into  the  pub- 
lic store  in  Xew  York,  on  a  general  order  to  discharge  the  ship,  on 
the  11th  of  November,  1S39,  and  was  delivered  therefrom  to  Messrs. 
Mainon  &  Bonnay  .on  the  22d  of  February  thereafter.  The  other 
parcel,  consisting  of  ten  packages,  was  brought  on  a  subsequent 
voyage  of  the  ship  '"Baltimore,"  tive  of  which  were  received  into  the 
store  on  a  like  order  on  the  26th  of  March,  1840,  and  delivered  to 
Mainon  &  Bonnay  on  the  22d  of  April  thereafter,  and  the  remaining 
five  packages  were  delivered  to  the  same  persons  from  the  ship. 
The  bills  of  lading  signed  by  the  master  were  produced,  and  by 
them  it  appeared  that  the  goods  were  shipped  at  Havre  by  one 
J.  Troussel,  and  that  the  master  engaged  to  carry  them  to  the  port 
of  New  York  and  there  to  deliver  them  to  the  defendants  or  to  their 
order,  on  jntying  freight  and  ten  per  cent,  prirnage.  When  the  ship 
arrived  at  New  York  upon  each  of  the  voyages,  the  plaintiffs'  agent 
caused  a  bill  of  the  freight  of  these  goods,  and  of  other  goods 
imported  by  the  defendants  in  the  same  vessel,  to  be  made  out  and 
presented  to  the  defendants.  They  requested  that  the  freight  now 
in  question  should  be  made  out  by  the  agent  in  separate  bills  against 
Mainon  &  Bonnay,  which  was  done;  and  the  bills  for  such  freight 
were  presented  to  them,  and  they  repeatedly  promised  to  pay  the 
amount.  They  failed  in  July,  1840,  without  having  paid  the  bills, 
having  on  that  day  executed  a  general  assignment  for  the  benefit  of 
their  creditors,  to  the  defendants,  to  whom  they  owed  a  considerable 
amount.  The  goods  for  which  freight  is  claimed  in  this  suit,  or  a 
considerable  part  of  them,  passed  under  this  assignment.  The  bills 
of  lading  were  severally  indorsed  by  the  defendants,  with  a  direc- 
tion to  deliver  the  goods  to  Mainon  &  Bonnay.  The  indorsement 
on  the  bill  of  lading  of  the  first  parcel  was  dated  February  21,  1840; 
the  other  indorsement  was  without  date. 

Pierre  Bonnay,  one  of  the  firm  of  Mainon  &  Bonnay,  was  examined 
on  the  part  of  the  df'fcndants,  and  testififd  that  the  goods  on  wliich 
the  freight  was  charged  were  ordered  and  i)urchased  by  tlie  witness's 
hou.se  of  a  house  in  France,  and  that  the  defendants  had  no  interest 
in  them;  that  they  were  forwarded  to  the  witness  through  the 
defendant's  house,  in  order  that  the  witness  might  settle  for  the 
puroli.'ise  price  with  the  defendants,  according  to  a  practice  which 
prevailed  in  respect  to  imi)ort:itions  by  the  witness  througli  the 
defendant's  house;  that  the  invoices  of  the  goods  were  made  out  to 
the  witness's  house,  but  the  bill  of  lading  was  sent  to  the  defend- 
ants, to  be  transferred  on  their  receiving  payment  of  the  cost  of  the 
goods. 

The  court  charged  the  jury  that  tlie  defrnilaiits  were  lial)le  for  the 
freight  claimed,  unless  there  was  an  express  agreement  on  the  part 
of  the  plaintiffs  to  look  to  Mainon  ..^  l^^nnay  for  the  same,  and  to 


carrier's  compensation.  453 

absolve  the  defendants  from  their  obligation.  The  defendants' 
counsel  excepted,  and  the  jury  gave  a  verdict  for  the  plaintiffs, 
upon  which  the  court  below  rendered  judgment.  A  bill  of  excep- 
tions having  been  signed,  the  defendants  brought  error. 

Jewett,  J.  The  obligation  to  pay  freight  rested  on  the  bill  of 
lading,  by  which  its  payment  was  made  a  condition  of  delivery  to 
the  consignee  or  to  his  order.  The  master  was  not  bound  to  part 
with  the  goods  until  the  freight  was  paid;  but  he  did  not,  by  deliver- 
ing the  goods  before  payment,  waive  or  discharge  his  legal  right  to 
demand  payment  of  the  person  who,  by  the  principles  of  law,  was 
primarily  liable  to  pay.  It  is  well  settled  that  when  the  goods,  by 
the  terms  of  the  bill  of  lading,  are  to  be  delivered  to  the  consignee 
or  to  his  order,  on  payment  of  freight,  the  party  receiving  them, 
whether  the  consignee  or  an  indorsee,  to  whom  the  bill  of  lading 
has  been  transferred  by  the  consignee,  makes  himself  responsible 
for  the  payment  of  the  freight.  The  law  implies  a  promise  on  his 
part  to  pay  the  freight,  such  being  the  terms  on  which,  by  the  bill 
of  lading,  the  goods  were  to  be  delivered.  The  person  who  accepts 
and  receives  the  property  thereby  makes  himself  a  party  to  the  con- 
tract. In  this  case  the  goods  were  consigned  to  the  defendants,  or 
to  their  order.  They  indorsed  the  bills  of  lading  and  ordered  a 
delivery  to  Mainon  &  Bonnay,  to  whom  the  goods  were  delivered. 
They,  and  not  the  defendants,  were  therefore  bound  to  pay  the 
freight.  Cock  v.  Taylor,  13  East,  399;  Trask  v.  Duval,  4  Wash. 
C.  C.  R.  184. 

In  Tobin  v.  Crawford,  5  Mees.  &  Wels.  235,  affirmed  on  error  in 
the  Exchequer  Chamber,  9  id.  716,  the  bills  of  lading  made  the  goods 
deliverable  to  the  shipper's  order,  or  to  his  assigns,  on  paying 
freight;  the  shipper  indorsed  the  bills  of  lading  and  forwarded 
them  to  the  defendants,  who  indorsed  them  to  their  agents,  and  the 
agents  received  the  goods.  It  was  held  that  the  defendants  were 
not  liable  for  the  freight,  because  the  contract  was  with  the  shipper 
in  the  first  instance,  and  afterwards  with  the  agents  receiving  the 
goods,  but  not  with  the  defendants,  they  having  given  no  authority, 
express  or  implied,  to  pledge  their  credit  for  the  freight.  The  only 
authority  which  could  be  implied  was  to  receive  the  goods,  paying 
the  freight  on  delivery.  The  case  establishes  the  principle  that  the 
party  who  actually  receives  the  goods  under  the  bill  of  lading 
becomes  thereby  a  party  to  its  stipulations  respecting  freight.  The 
charge  of  the  court  below  was  therefore  erroneous,  and  the  judgment 
must  be  reversed. 

Judgment  reversed. 


454  CAKUIERS    OF    GOODS. 


SCAIFE    V.    TOBIX. 
King's  Beuch.     3  Barn.  &  Ad.  523.     1832. 

This  was  an  action  by  the  plaintiffs  as  surviving  owners  of  the 
brig  "Solon,"  against  the  defendant  as  consignee  at  Liverpool  of 
goods  shipped  on  board  the  "Solon  "at  Demerara,  upon  a  voyage 
from  that  place  to  Liverpool,  for  average  loss.  At  the  trial  before 
Baylev,  J.,  at  the  summer  assizes  for  Cumberland,  1830,  the  jury 
found  a  verdict  for  the  plaintiffs,  subject  to  the  opinion  of  this 
court  on  the  following  case :  — 

The  brig  "  Solon  "  sailed  from  Demerara  on  a  voyage  to  Liverpool, 
on  the  Gth  of  January,  1820,  having  on  board  goods  shii)ped  by  one 
Cramer  on  his  own  account,  and  other  goods  shipped  by  J.  J.  Starkey 
on  his  own  account,  and  on  the  several  accounts  of  two  other  par- 
ties. They  were  consigned  to  the  defendant  by  four  several  bills  of 
lading,  each  expressing  the  goods  mentioned  in  it  were  to  be  delivered 
to  the  defendant  or  his  assif/7is,  paying  freight  for  the  same  with 
primage  and  average  accustomed .  The  goods  were  so  consigned  at 
the  risk  of  the  consignors.  The  course  of  dealing  between  the  con- 
signors and  the  defendant  was,  that  the  former,  upon  making  ship- 
ments, drew  bills  upon  the  defendant,  wlio  sold  the  consignment  on 
their  account,  carried  the  proceeds  of  the  sale  to  their  credit,  and 
debited  them  with  the  amount  paid  by  him  upon  their  bills,  charg- 
ing a  commission  upon  the  sales.  Accounts  of  these  were  rendered 
from  time  to  time  as  they  occurred,  and  accounts  current  were 
usually  rendered  lialf  yearly  to  January  and  July.  The  defendant 
sometimes  paid  charges  for  general  average  upon  the  goods  so  con- 
signed, and  debited  the  consignors  with  the  amount.  Whilst  the 
"Solon"  was  proceeding  on  her  voyage,  the  masts  were  cut  away  in 
a  storm  for  the  preservation  of  tlie  ship  and  cargo,  and  the  loss 
which  gave  rise  to  the  present  claim  for  avi-rage  was  tliereby  occa- 
sioned. The  vessel  put  into  Holyhead  on  the  25th  of  February, 
and  remained  there  till  the  2Sth,  and  she  tlion  sailed  for  Liverpool, 
wljore  slie  arrived  on  tlie  3d  of  March.  Whilst  slic  was  at  Holyhead, 
the  master  wrote  a  letter  to  tlio  defendant  and  the  otlier  consignees 
of  the  goods  on  board  the  vessel,  informing  them  of  tlie  damage  sus- 
tained, and  requesting  instructions.  This  letter  was  received  by  the 
defendant  before  the  "  Solon  "  arrived  at  Liverpool,  but  no  answer 
was  sent.  The  defendant  had  also  received  bills  of  lading  and 
invoices  of  the  goods  oonsignecl  to  him,  on  tlie  2/>th  of  Fel)ruary. 
On  the  litli  of  June  he  was  called  upon  to  pay  tlie  average  in  ques- 
tion. The  goods  consigned  to  the  defendant  were  delivered  to  him 
aft*?r  the  arrival  of  the  ship,  and  were.  s(dd  by  liim  on  account  of  the 


caekier's  compensation.  455 

consignors,  and  an  account  of  the  sale  of  Mr.  Cramer's  goods  was 
rendered  to  him  on  the  13th  of  April,  1829,  but  no  accounts  of  the 
sale  of  the  goods  of  the  other  consignors  were  rendered  to  them 
until  after  the  9th  of  June,  when  the  claim  for  average  was  made 
upon  the  defendant.  The  "  Solon  "  was  chartered  by  Mr.  Starkey  at 
Demerara,  and  the  defendant  gave  no  orders  for  the  consignment  of 
the  goods  to  him,  nor  did  he  know  that  any  goods  were  consigned 
to  him  by  the  "Solon,"  till  he  received  the  bills  of  lading  and  the 
invoices. 

LiTTLEDALE,  J.^  There  is  no  doubt  tl;at  an  absolute  owner  of 
goods  is  liable  to  pay  general  average.  But  a  mere  consignee,  who 
has  a  special  property  in  the  goods,  is  not  so  chargeable.  He  could 
not  even  pledge  the  goods  before  the  late  Act  of  Parliament.  The 
question  of  liability  here  depends  entirely  on  the  maritime  law.  It 
is  said  that  general  average  bears  an  analogy  to  freight,  and  that  if 
goods  be  delivered  to  a  consignee,  he  is  liable  to  pay  freight.  There 
is  no  doubt  that  a  consignee,  not  the  owner  of  goods,  who  receives 
them  in  pursuance  of  a  bill  of  lading,  in  which  it  is  expressed  that 
they  are  to  be  delivered  to  him,  he  paying  freight  or  demurrage,  is 
liable  to  those  charges ;  but  then  he  is  so  liable  by  reason  of  a 
special  contract  implied  by  the  law  from  the  fact  of  his  having 
accepted  goods  which  were  to  be  delivered  to  him  only  on  condition 
of  his  paying  freight  and  demurrage.  In  Jesson  v.  Solly,  4  Taunt. 
52,  it  was  said  by  the  court  that  the  consignee  by  taking  the  goods 
adopted  the  contract;  that  is,  the  contract  in  the  bill  of  lading, 
whereby  the  master  agreed  with  the  shipper  to  deliver  the  goods  to 
the  consignee,  he  paying  demurrage  and  freight.  Here,  if  it  had 
been  stated  in  the  bill  of  lading  that  the  goods  were  to  be  delivered 
to  the  defendant  or  his  assigns,  he  or  they  paying  freight  and 
general  average,  he,  by  receiving  the  goods,  would  have  adopted  this 
as  his  contract,  and  would  be  presumed  to  have  contracted  to  pay  to 
the  shipowner  those  charges,  the  payment  of  which  was  made  a  con- 
dition precedent  to  the  delivery;  but  here  general  average  is  not 
mentioned.  The  argument  that  it  would  be  for  the  convenience  of 
commerce  that  a  mere  consignee,  not  the  owner,  should  be  liable  to 
general  average,  applies  equally  to  demurrage ;  but  neither  the  law 
of  England  nor  the  general  law  of  the  world  makes  him  so  liable. 
It  is  said  that  the  defendant  is  liable  because  he  had  notice,  before 
he  received  the  goods,  that  they  were  subject  to  this  charge.  But 
the  law  will  not  imply  a  contract  to  pay  general  average  merely 
because  the  defendant,  before  he  received  the  goods,  knew  that  they 
were  subject  to  it.  As,  then,  there  was  no  contract,  express  or 
implied,  to  pay  general  average,  the  plaintiff  cannot  recover. 

Judgment  for  the  defendant, 

1  Opinion  of  Parke,  J.,  is  omitted. 


456  CARRIERS   OF   GOODS. 

WEGENER   V.    SMITH. 
Common  Tleas.     15  C.  B.  2S5.     1S54. 

Tnis  was  an  action  by  the  master  of  a  ship  called  the  "Gustave 
Adulphe,"  against  the  defendant,  a  merchant  at  Sunderland,  for 
demurrage.     Plea,  amongst  others,  never  indebted. 

The  cause  was  tried  before  Ckowdeu,  J.,  at  the  last  assizes  at 
Durham.  The  plaintiff  put  in  a  charter-party  between  one  Schreber, 
a  merchant  at  Stettin,  and  himself,  for  the  hire  of  the  ship  for  a 
voyage  to  Sunderland  with  a  full  cargo  of  timber.  The  charter- 
party  provided  that  the  cargo  should  be  brought  alongside  and  put 
free  on  board,  to  be  delivered  at  the  port  of  discharge  on  payment 
of  a  certain  measurement  freight;  and,  in  case  of  detention,  tlie 
captain  to  be  paid  £5  for  every  provable  lay-day. 

The  bill  of  lading,  for  the  whole  cargo,  which  was  indorsed  to 
the  defendant,  made  the  goods  deliverable  to  order  "against  pay- 
ment of  the  agreed  freight  and  other  conditions  as  per  charter- 
party." 

The  defendant  received  the  timber  under  the  bill  of  lading,  but 
refused  to  pay  the  demurrage  claimed  by  the  plaintiff,  alleging  that 
he  was  not  liable  for  demurrage;  and  it  was  insisted,  on  his  behalf, 
at  the  trial,  that  the  action  was  not  maintainable,  that  the  master 
could  not  sue,  and  that  the  defendant  as  assignee  of  the  bill  of  lad- 
ing was  not  liable  for  demurrage,  in  the  absence  of  a  contract  on  his 
part,  express  or  implied,  to  pay  it,  and  tliat  there  was  no  evidence 
to  go  to  the  jury  of  any  such  implied  contract. 

On  the  other  hand,  it  was  insisted,  that  the  reference  to  the  charter- 
party  in  the  bill  of  lading  incorporated  therein  all  its  terms,  and 
amongst  otliers  the  contract  for  demurrage. 

The  learned  judge,  reserving  the  ])f)ints,  left  the  case  to  the  jury, 
who  returned  a  verdict  for  the  plaintiff,  damages  £G(>. 

Jkkvis,  C.  J.*  As  far  as  regards  tlie  evidence,  the  whole  was  a 
question  for  tlie  jury :  they  found  for  the  ])laintiff;  and  I  do  not  under- 
stand my  brotlier  Crowder  to  express  himself  dissatisfied  witli  the 
verdict.  The  only  question  is  as  to  tlie  construction  of  the  words  in 
the  bill  of  lading,  "against  payment  of  the  agreed  freight  and  other 
conditions  as  per  charter-party."  Tliat  refers  to  the  charter-party, 
wliieh  stipulates  for  demurrage  at  £5  per  day.  I  think  the  defendant 
was  clearly  liable  to  demurrage. 

1  Opiuiouii  uf  other  judges  arc  omitted. 


carrier's  compensation.  457 

ASHMOLE  V.    WAINWRIGHT. 
Queen's  Bench.    2  Q.  B.  837.     1842. 

Assumpsit  for  money  had  and  received  and  on  account  stated. 
The  particular  claimed  £5  5s.,  paid  on,  etc.,  by  plaintiff  to  defend- 
ants, "in  order  to  obtain  possession  of  certain  goods  belonging  to 
the  plaintiff  then  in  the  custody  of  the  defendants,  and  which  said 
sum,"  etc.,  "was  paid  by  the  plaintiff  under  the  protest  that  he  was 
not  liable  to  pay  the  same  or  any  part  thereof;  or,  if  liable  to  pay 
some  part  thereof,  that  the  sum  claimed  by  the  defendants,  namely," 
etc.,  "was  an  exorbitant  and  unreasonable  claim." 

Plea:  Non-assumpsit.     Issue  thereon. 

On  the  trial  before  Coleridge,  J.,  at  the  Westminster  sittings 
after  Hilary  Term,  1841,  it'  appeared  that,  in  October,  1839,  the 
defendants,  who  were  common  carriers,  conveyed  certain  goods  for 
the  plaintiff  from  Walpole  to  London,  under  circumstances  which 
induced  the  plaintiff  to  expect  that  they  would  make  no  charge  for 
so  doing.  The  goods,  being  brought  to  London,  remained  some 
time  in  the  defendants'  warehouse,  after  which,  on  the  plaintiff 
sending  for  them,  the  defendants  refused  to  give  them  to  him  except 
upon  his  paying  £5  5s.  for  carriage  and  warehouse  room.  The 
plaintiff  insisted  that  he  was  not  liable  to  pay  anything;  and  that  if 
he  was  liable  to  pay  anything,  the  demand  was  exorbitant.  In  an 
interview  which  the  plaintiff's  attorney  had  with  one  of  the  defend- 
ants at  their  place  of  business,  the  latter  declared  that  he  would 
receive  nothing  less  than  the  whole  sum  demanded.  The  attorney 
called  again  a  few  days  afterwards,  and  said  to  the  same  defendant, 
"I  suppose  you  still  refuse  to  take  anything  less  than  the  whole 
sum;  "  to  which  the  defendant  said,  "  Of  course  I  do."  The  attorney 
then  paid  him  the  £5  5s.,  and  told  him  that  he  paid  it  under  protest 
as  to  both  points.  The  goods  were  then  given  up  to  the  plaintiff. 
The  learned  judge  put  three  questions  to  the  jury:  1.  Was  the 
plaintiff"  to  pay  anything?  2.  Was  £5  5s.  an  unreasonable  sum? 
3.  If  £5  5s.  was  unreasonable,  what  was  a  reasonable  sum?  The 
jury  found  that  the  plaintiff  ought  to  pay  something;  that  the 
demand  of  £5  5s.  was  unreasonable;  that  the  reasonable  charges 
were  18s.  for  carriage,  and  12s.  &d.  for  warehouse  room.  The  learned 
judge  was  of  opinion  that  the  plaintiff  ought  to  have  tendered  that 
or  a  larger  sum;  and  a  verdict  was  entered  for  the  defendant,  with 
leave  for  the  plaintiff  to  move  to  enter  a  verdict  for  £3  14s.  Q>d.  if 
the  court  should  be  of  opinion  that  a  tender  was  unnecessary.  [On 
a  rule  nisi.'] 

Lord  Denman,  C.  J.  As  is  very  commonly  the  case,  each  party 
has  taken  pains  to  put  himself  in  the  wrong.     After  carriage  of  the 


4r»S  CARRIERS    OF    GOODS. 

goods  without  express  bargain,  the  owner,  the  plaintiff,  says  that 
the  carriers,  the  defendants,  were  to  carry  them  for  nothing,  and 
he  demands  the  goods:  the  defendants  claim  what  must  now  be 
taken  to  be  a  very  exorbitant  charge,  and  refuse  to  deliver  the  goods 
except  on  payment  of  £5  os. ;  the  plaintiff  says,  I  will  pay  it  under 
protest  that  I  do  not  owe  you  so  much.  The  jury  find  that  the 
proper  sum  is  £1  10s.  Gd.  To  the  extent  of  the  difference  the 
defendants  have  received  the  plaintiff's  money;  is  there  anything 
in  the  circumstances  to  deprive  him  of  his  remedy  as  for  money 
received  by  them  to  his  use?  It  is  said  that  he  ought  to  have  ten- 
dered the  proper  charges :  the  answer  is,  that  they  ought  to  have 
told  him  the  proper  charges.  I  can  see  no  other  circumstance  to 
deprive  the  plaintiff  of  his  action  in  this  form :  the  cases  relied  on 
for  the  defendants  are  all  distinguishable;  the  utmost  extent  to 
which  they  go  is  that  the  action  does  not  lie  where  there  is  another 
adequate  remedy;  and,  as  to  equity,  when  the  defendants  had  re- 
ceived such  notice  as  they  did,  both  from  the  attorney  and  from  the 
language  of  the  particulars,  it  was  their  duty  to  pay  back  the  sums 
which  they  had  no  right  to  retain. 

Pattesox,  J.  I  should  be  sorry  to  throw  any  doubt  upon  the 
point  that  an  action  for  money  had  and  received  will  lie  to  recover 
money  paid  on  the  wrongful  detainer  of  goods:  it  would  be  very 
dangerous  to  do  so,  the  doctrine  being  in  itself  so  reasonable,  and 
su[)})orted  by  so  many  authorities.  In  Lindon  v.  Hooper,  1  Cowp. 
414,  replevin  was  as  convenient  a  mode  of  recovering  the  money  as 
the  action  for  money  had  and  received ;  but  replevin  would  not  lie 
here.  My  only  difficulty  has  arisen  from  the  necessity  for  a  tender. 
Astley  V.  Reynolds,  2  Strange,  915,  at  first  sight  seemed  to  be 
somewhat  in  favor  of  the  i)resent  defendants;  for  tliere  a  tender  was 
made;  and  I  am  not  prepared  to  go  the  length  of  saying  that,  where 
a  party  simply  denies  that  anything  is  due,  then  pays,  and  after- 
wards sues  for  the  whole  sum,  he  may  turn  round  at  the  trial  and 
recover  part;  for  his  objecting  to  the  whole  would  be  like  a  decep- 
tion. In  this  case,  therefore,  had  tliere  been  nothing  to  sliow  that 
the  plaintiff  ever  demanded  less  than  to  have  the  goods  without  any 
payment,  according  to  his  first  claim,  I  should  hardly  have  said  that 
the  action  would  be  maintainable.  I>ut,  on  the  further  conversation 
and  tlie  subsequent  applications,  an  allegation  of  overcharge  is  added 
to  the  at  first  total  denial:  the  defendants  always  demanded  the 
whole;  the  plaintiff  did  not  altogether  insist  that  nothing  at  all  was 
due;  then  the  particulars  of  demand  distinctly  show  that  the  action 
vras  brought,  not  merely  to  recover  the  whc)le,  but  to  recover  the 
j):irt  overcharged,  if  the  plaintiff  was  liable  at  all.  After  such  a 
ii<'?iee  the  proper  course  for  the  defendant  was  to  ]iay  the  difference 
iui<)  court. 

CoLKKiDOF,  J.  I  never  doubted  that  an  action  f^r  money  had 
and  received  n»ight  be  maintained   to   recover  money   paid  on   the 


carrier's  compensation.  459 

wrongful  detainer  of  goods.  Skeate  v.  Beale,  11  A.  &  E.  983,  is 
not  inconsistent  with  this  doctrine.  That  was  an  action  on  a  written 
agreement;  duress  of  goods  was  pleaded;  and  the  court  held  that, 
for  that  purpose,  there  was  no  distinction  between  an  agreement  and 
a  deed,  so  that  the  agreement  must  be  held  to  have  been  voluntary. 
It  is  very  true  that  some  words  in  the  judgment  go  beyond  the  point 
decided;  but  they  are  not  necessary  to  the  decision,  which  is  quite 
consistent  with  our  decision  in  the  present  case.  Here  the  only 
question  is  on  the  necessity  of  tendering  or  demanding  back  a 
specific  sum.  Taking  the  particulars  altogether,  they  are  clearly 
meant  to  convey  notice  of  the  plaintiff's  intention  to  recover  all  or 
such  part  as  he  might  be  entitled  to;  and,  after  hearing  the  argu- 
ment, I  am  satisfied  that  no  tender  of  any  specific  sum  was  neces- 
sary. The  defendants  began  wrong  by  making  an  exorbitant  de- 
mand: in  whose  knowledge,  if  not  in  theirs,  did  the  proper  charges 
lie?  Surely  the  duty  of  ascertaining  the  proper  charge  lay  on  them 
in  the  first  instance.  Looking  at  the  nature  of  the  demand,  it  could 
not  be  for  the  plaintiff  to  ascertain  the  specific  sum.     See  Jones  v. 

Tarleton,  9  M.  &  W.  675. 

Rule  absolute. 


CHASE  V.   ALLIANCE  INS.    CO. 

9  Allen  (Mass.),  311.     1864. 

CojJTRACT  upon  a  policy  of  insurance  issued  by  the  defendants, 
dated  April  25,  1862,  by  which  they  insured  the  plaintiff  for_one_ 
vearjii  the  sum  of  S20,000  on  the  freight  of  the  ship  "Flying  Mist," 
said   freight   valued  at   $30,000  on   board   or   not  on  board.     The 
following  facts  were  agreed  in  this  court:  — 

On  the  day  when  the  policy  declared  on  was  issued,  additional 
insurance  was  effected  at  other  offices,  in  the  sum  of  $10,000,  under 
leave  granted  in  this  policy.  The  ship  "Flying  Mist "  was  then 
under  a  charter,  executed  March  4,  1862,  at  Glasgow,  in  Scotland, 
to  persons  living  there,  by  which  it  was  agreed  that  she  should 
proceed  from  London,  where  she  was  then  lying,  "to  Glasgow,  and 
there  receive  on  board  a  full  and  complete  cargo  of  sheep  and  other 
cargo,  .  .  .  and  therewith  proceed  to  Dunedin,  New  Zealand,  or  one 
other  port,  as  ordered  at  Otago,  .  .  .  fi-eight  for  the  same  to  be  paid 
at  a  lump  sum  of  twenty-six  hundred  and  fafty  pounds  sterling,  .  .  . 
and,  on  delivery  of  the  outward  cargo,  the  vessel  shall  at  once  sail 
for  Melbourne,  Sidney,  Launcestown,  or  Hobart  Town,  as  ordered  by 
charterer's  agent  at  Dunedin,  etc.  .  .  .  The  freight  to  be  paid  as 
follows :  Two  thousand  pounds  cash  on  the  final  clearing  of  the  ship 
from  Greenock  .  .  .  and  the  balance  on  right  and  true  delivery  of 
the  cargo  at  Dunedin." 


460  CARRIERS   OF   GOODS. 

Under  said  charter  the  ship  sailed  for  Glasgow  and  arrived  there 
on  April  7th,  18G2,  completed  her  loading,  and  sailed  tor  New 
Zealand  on  the  5th  of  June,  and  was  totall}'  lost  by  yierils  of  the 
seas  on  said  voyage,  at  the  entrance  of  the  harbor  of  Otago,  in  New 
Zealand ,  on  the  27th  of  August,  1862.  Due  proof  of  loss  was  made, 
anillie  defendants  paid  to  the  plaintiff  the  sum  of  $13,235.32,  under 
the  policy;  and  the  plaintiff  claimed  an  additional  sum  as  herein- 
after stated. 

The  charterer  paid  to  the  master  of  the  ship,  on  her  clearing  from 
Greenocky  £2,000,  as  stipulated  in  the'cTiarterTwhich  sum  was  agreed 
to  be  valued  at  S 10, 140. 37.  It  was  admitted  that  no  reclamation  of 
this  sum  has  been  made;  and  the  defendants  contended  that  the 
plaintiff  was  not  liable  to  refund  it,  and  that  the  same^.should_J>e 
deducted  from  the  gross  sum  insured  on  th e  freight,  leaving  them 
liable  only  for  the  sum  which  they  had  already  paid.  And  the 
ques1;ioh' submitted  to  the  court  was,  whether  said  sum  of  $10,140.37 
should  be  so  deducted ;  and  it  was  agreed  that  the  court  should  enter 
judgment  for  the  jdaintiff  for  $0,704.68,  with  interest,  or  for  the 
defendants,  as  this  question  should  be  determined. 

HoAK,  J.  The  first  question  which  the  case  presents  is,  whether 
the  payment  on  account  of  freight  stipulated  in  the  charter-party, 
and  which  was  made  before  the  vessel  sailed  from  Greenock,  can  be 
recovered  back  by  the  charterer  from  the  insured.  If  it  can,  then 
the  whole  valued  freight  was  at  risk  at  the  time  of  the  loss,  and  the 
plaintiff  is  entitled  to  recover. 

"The  general  rule  of  law,"  as  was  said  by  the  Chief  Justice  in  the 
recenl'case  of  I'.enner  v.  i>quitable  Ins.  Co.,  6  Allen,  222,  "is,  that 
freight  ])aid  in  advance  is  not  earned,  unless  the  voyage  for  wliieli 
it  is  stipulated  to  be  paid  is  fully  ]ierfc>rmed;  ami  tlie  owner  of  tTie 
vr.s.S'd  is  liable  to  a  claim  for  reiml)ursf nient  iu  favor  of  tlie  sliipper, 
it  f(jr  any  fault  not  imjiutable  to  the  latter  tlie  contract  of  affreiglit- 
nieiit  is  not  fultilledT"  Tins  rule  "may  be  varied  or  annulled  by  an 
express  agreement  in  the  charter-party  or  bill  of  lading,  by  which 
it  is  ])rovided  that  money  paid  in  advance  on  account  of  the  freight 
shall  be  deemed  to  be  absolutely  due  to  the  owner  at  the  time  of  its 
j)repayment,  and  not  in  any  degree  dependent  on  the  contingency 
of  the  ])erformance  of  the  contemplated  voyage,  and  the  entire  ful- 
filment of  tlui  contract  of  carriage.  But  as  such  a  stipulation  is 
intended  to  control  the  usual  rule  of  law  apjdicable  to  such  con- 
tracts, and  to  substitute  in  its  place  a  positive  agreement  of  the 
])arties,  it  is  necessary  to  express  it  in  terms  so  clear  and  unambig- 
'.  .  as  to  leave  no  doubt  that  such  was  the  intention  in  framing  the 
<;. tract  of  affreightment.  Otherwise,  the  general  rule  of  law  must 
prevail. "  The  doctrine  tluis  stated,  and  which  was  held  upon  full 
consideration  in  Minturn  v.  Warren  Ins.  Co.,  2  Allen,  S6,  renders 
any  discussion  of  the  general  ]>roj)osition  unnecessary,  that  a  pay 
ment  made  in  advance  for  freight  may  be  recovered  bark,   if  the 


carrier's  compensation.  461 

freight  is  not  earned,  in  the  absence  of  any  express  agreement  to 
the  contrary. 

Judgment  for  the  plaintiff. 


b.    Lien. 

SKINNER   V.    UPSHAW. 

King's  Bench.     2  Ld.  Ray.  752.     1702. 

The  plaintiff  brought  an  action  of  trover  against  the  defendant, 
being  a  common  carrier,  for  goods  delivered  to  him  to  carry,  etc. 
Upon  not  guilty  pleaded,  the  defendant  gave  in  evidence,  that  he 
offered  to  deliver  the  goods  to  the  plaintiff,  if  he  would  pay  him  his 
hire;  but  that  the  plaintiff  refused,  etc.,  and  therefore  he  retained 
them.  And  it  was  ruled  by  Holt,  Chief  Justice  at  Guildhall  (the 
case  being  tried  before  him  there),  May  12,  1  Ann.  Eeg.  1702,  that 
a  carrier  may  retain  the  goods  for  his  hire ;  and  upon  direction  the 
defendant  had  a  verdict  given  for  him. 


PHILLIPS   V.   EODIE. 
King's  Bench.     15  East,  547.     1812. 

In  trover  for  179  bales  of  cotton,  which  was  tried  at  Lancaster, 
before  Wood,  B.,  a  verdict  was  found  for  the  plaintiffs  for  £1,955 
18s.  2d.,  subject  to  the  opinion  of  the  court  on  the  following  case. 

On  the  15th  of  October,  1810,  White,  the  bankrupt,  entered  into  a 
charter-party  with  the  defendants  for  the  hire  of  the  ship  "Flora," 
of  which  the  defendants  are  owners,  on  a  voyage  from  Liverpool  to 
Surinam  and  back  again. 

[By  the  charter-party.  White  was  to  pay  for  the  return  cargo  at 
specified  rates  of  freight  for  certain-named  kinds  of  goods,  and_jf 
the  vessel  should  not  be  fully  laden  with  the  return  cargo,  he  was  to 
pay  for  so  mvich  in  addition  as  the  vessel  would  have  carried ;  and  if 
Ee  should  not  furnish  any  return  cargo,  then  he  should  pay  full 
freight  for  the  vessel  as  if  she  should  have  been  fully  laden.  He 
was  also  to  pay  a  certain  rate  of  demurrage  for  each  day's  delay 
beyond  a  stipulatedtime  for  putting  on  board  the  cargo7  There 
was  delay  by  White's  agent  at  Surinam  in  furnishing  a  cargo,  and 
then  the  vessel  was  only  partially  loaded.      White  having  become 


462  CAitniERS  OF  goods. 

insolvent  before  the  return  of  the  vessel  to  Liverpool,  the  plaintiffs^ 
iiis  assi.t^ees,  tendered  the  freiqlit  and  charges  as  to  the  snoods 
sLi|>ped,  but  defendant  demanded  an  additional  sum  for  demurrage 
and  for  freiglit  on  the  deficiency  of  the  cargo,  usually  called  dea.d 
freight,  and  detained  the  goods  under  claim  of  a  lien  therefor. 
Verdict  was  for  plaintiffs  for  the  agreed  value  of  the  goods  detained, 
less  the  charges  thereon.  If  plaintiffs  were  found  not  to  be  entitled 
to  a  verdict  a  nonsuit  was  to  be  entered.] 

Litiledale,  for  the  plaintiffs,  contended  that  the  defendants  had 
no  lien  either  for  the  demurrage  or  dead  freight;  the  claim  of  a  lien 
on  the  cargo  for  demurrage  was  neither  warranted  by  the  charter- 
party,  by  any  usage  of  trade  found,  or  by  any  legal  precedent.  But 
even  if  such  a  lien  could  exist,  it  would  have  been  waived  in  this 
case  by  the  defendants  having  taken  a  bill  payable  at  a  future  day 
for  it.  Next,  there  can  be  no  lien  for  dead  freight,  as  it  is  called, 
which  is  a  mere  nonentity,  the  only  satisfaction  for  which  rests  on 
the  covenant,  which  is  personal.  A  lien  is  properly  a  right  to  detain 
specific  property  for  something  due  in  respect  of  it  until  payment 
be  made;  such  as  artificers  have  for  the  value  of  their  work  on  the 
goods  of  another;  carriers  for  the  carriage  of  goods;  though  liens 
may  exist  in  other  cases  by  express  contract,  or  implication.  So 
owners  of  ships  have  a  lien  for  freight;  that  is,  for  the  actual  car- 
riage of  the  goods. ^  If  the  freight  had  been  agreed  to  be  paid  at  so 
much  a  ton  on  the  ship's  measurement,  the  defendants  would  have 
had  a  lien  for  it  on  the  goods  actually  shipped,  whether  more  or 
less;  but  here  it  was  made  payable  according  to  different  rates  upon 
specific  goods;  and  if  they  could  detain  the  goods  on  board  for 
freight  not  earned,  it  would  exclude  the  freighters  from  pleading 
that  they  were  ready  to  have  loaded  a  comjjlete  cargo  but  for  the 
captain,  who  refused  to  take  it  in.  Upon  this  contract  for  different 
rates  of  freight  on  different  goods  the  amount  is  uncertain,  where 
the  freight  was  not  in  fact  earned;  so  that  the  freighters  could 
not  tell  for  how  much  they  were  to  give  their  bill;  and  it  must  be 
equally  doubtful  ])y  what  rule  the  compensation  is  to  be  made;  it 
rests  therefore  in  damages,  to  be  assessed  with  reference  to  the 
usage  of  trade.'  Perhaps  it  might  be  too  much  to  say  tiiat  there 
was  no  lien  in  this  case  upon  the  goods  unshipped  at  the  docks:  the 
unloading  is  an  act  going  on  from  day  to  day;  and  perhaps  White 
iiii-ht  not  \)0  bound  to  give  the  bill  till  the  last  package  was  ready 
to  be  delivered. 

liicharJson,  contra,  as  to  the  last  observation,  said  that  the  master 
might  continue  his  lien  by  landing  the  goods  in  the  docks  at  L.  in 
his  own  name,  and  might  make  an  entry  in  his  own  name  in  the 
<lork-l>ookH,  to  continue  his  lien;  and  therefore  tlie  cargo  being 
.s'rv.ral  (lays  in  landing  could  make  no  difference  in  this  case,     liut 

>  Rf)c«!U«,  p.  1,  and  lUakoy  v.  Dixon.  2  Hos.  &  Pull.  321,  veptv  cited. 
»  Ik-ll  r.  Puller,  2  Taunt.  299,  and  AbUU  on  M.tc1i.  Sliij..  27  I. 


carrier's  compensation.  463 

the  sole  question  intended  to  be  made  was  upon  the  fair  meaning  of 
the  charter-party,   which  goes  further  than  the  common  form,   in 
stipulating  that  if  the  vessel  should  not  be  fully  laden  with  the 
return  cargo,  White  should  not  only  pay  freight  for  the  goods  on 
board,  but  for  so  much  in  addition  as  the  vessel  would  have  carried. 
And  it  also  provides  that  in  case  of  there  being  no  cargo  put  on 
board,  he  shall  still  pay  full  freight,  as  if  she  had  been  fully  laden 
with  goods  of  the  above  description.     [Le  Blanc,  J.     Must  not  the 
amount  depend  upon  the  description  of  the  cargo?]     That  is  regu- 
lated by  usage,  and  the  proportions  are  understood  by  the  parties. 
The  payment  in  any  case  is  reserved  to  be  made  as  freight,  and  the 
contract  of  the  parties  must  be  construed  with  reference  to  the  state 
of  things  if  the  ship  had  been  fully  laden,  so  far  as  there  is  any 
subject-matter  for  the  accustomed  lien  to  act  upon.     [Lord  Ellex- 
BOROUGH,  C.  J.     If  any  lien  were  established  in  this  case,  it  must 
be  to  the  extent  which  the  arbitrators  should  award;  for  the  amount 
must  be  a  subject  of  reference;  ^  and  that  would  be  a  novel  species 
of  lien  at  common  law.]     It  may  be  calculated  by  usage,  as  easily  as 
the  value  of  work  in  ordinary  cases.     [Lord  Ellenborough,  C.  J. 
We  must  then  assume  that  there  existed  a  known  usage  in  these 
cases,  and  that  both  parties  were  cognizant  of  it  at  the  time  when 
the  contract  was  entered  into,  and  contracted  with  reference  to  it. 
Does  not  a  lien  for  freight  mean  for  goods  actually  carried?  but  this 
is  a  lien  upon  air;  for  goods  not  carried.     Bayley,  J.     What  terms 
are  there  in  the  charter-party  from  whence  it  can  be  collected  that 
the  freighters  were  bound  to  carry  such  a  proportion  of  each  com- 
modity; for  example,  what  was  there  to  oblige  them  to  load  coffee?] 
Usage  regulates  the  proportions;  and  as  there  is  no  doubt  that  an 
action   of  covenant  would  lie   to   recover   damages    for  the  breach 
in  not  loading  fully,   the  amount  must   be   capable   of   reasonable 
certainty.     If  the  goods  were  not  loaded  by  the  master's  fault,  that 
would  be  an  answer  to  the  demand;  and  whatever  would  be  a  defence 
to  an  action  on  the  covenant  would  take  away  the  lien;  and  the 
plaintiffs  might  have  discharged  the  lien  by  tendering  a  sum  sufficient 
to  discharge  the  demand. 

Lord  Ellenborough,  C.  J.  It  is  impossible  in  this  case,  without 
the  intervention  of  a  jury  or  an  arbitrator,  to  settle  what  is  the  sum 
to  be  tendered :  it  would  be  taking  a  leap  in  the  dark.  Where  there 
is  no  custom  to  regulate  the  proportions  and  the  amount,  the  case 
must  necessarily  rest  in  damages.  What  is  a  lien  for  freight  but  a 
riglvt  to  detain  the  goods  on  board  until  the  freight  which  has  been 
actually  earned  upon  them,  which  is  always  capable  of  being  calcu- 
lated and  ascertained,  has  been  paid,  and  where  the  owner  of  the 
goods  knows  what  he  is  to  tender?  But  here  the  claim  to  retain  is' 
forjhe  amount  of  damages  unascertained,  which  the  parties  are 
entitled  to  recover  for  the  non-comi3letion  of  the  cargo,  commonly 

1  See  a  case  of  this  sort,  Harrison  v.  Wright,  13  East,  343. 


464  CARRIERS    OF   GOODS. 

c.  "  '  '  1  freight;  but  it  is  that  term,  freight,  which  has  misled 
t;.  .aits;  for  it  is  nut  frei'j:ht,  but  an  imliquit.lated  compensa- 

tiuti  luTTIie  loss  vi  freii^ht,  recoverable  in  the  absence  and  i^lace  of 
frt'i'ht.  The  covenant  is  in  effect  to  load  the  vessel  fully,  or  if  not, 
to  indemnify  the  shipowner  by  paying  so  much  in  addition  as  the 
vessel  would  have  carried:  the  covenant,  in  the  event  of  no  loading, 
is  to  pay  full  freight  for  the  vessel  (not  for  goods  not  loaded),  as  if 
she  had  been  loaded  with  goods  of  the  description  before  mentioned ; 
that  must  depend  on  the  tonnage  of  the  vessel.  In  order  to  found 
the  argument,  the  covenant  should  have  been  to  pay  full  freight  as 
if  the  goods  had  been  actually  loaded  on  board,  and  that  the  master 
should  have  the  same  lien  upon  the  goods  actually  on  board  as  if 
the  ship  had  been  fully  laden  with  all  tlie  goods  covenanted  to  be 
loaded.  But  if  we  were  to  put  tliis  construction  upon  the  contract 
as  it  now  stands,  it  would  be  making  a  new  contract  for  the  parties. 
There  is  no  pretence  or  color  for  the  lien  now  claimed;  it  is  a  lien 
to  attach  upon  a  nonentity:  the  plaintiffs'  action  of  trover,  there- 
fore, is  not  met  by  any  defence., 

Gkose,  J.     A  lien  must  attach  upon  some  certain  thing;  and  here 
there  is  nothing  for  it  to  attach  upon. 

Fostea  to  the  jilaintiffs. 


CHICAGO   &  ^iOKTH WESTERN   E.    CO.    v,   JENKINS. 
103  111.  588.     1SS2. 

Mk.  Jl-sthe  Walker.  ....... 

It  is  claimed  that  appellant  had  the  right  to  hold  the  property 
until  its  charges  for  demurrage  were  paid,  — that  they  were  a  lien 
on  the  property,  and  it  was  not  required  to  make  delivery  until 
they  were  paid.  The  claim  is  based  on  rules  and  regulations 
adopted  and  published  by  the  company.  It  will  be  conceded  that 
all  liens  are  created  by  law,  or  by  contract  of  the  parties.  Where 
tlie  law  gives  no  lien,  neither  party  can  create  it  without  the  con- 
stant or  agreement  of  the  other!  Noyes  «&  Messenger  were~tliere- 
fore  not  bound  by  these  rules  unless  they  assented  to  them  when 
the  contract  for  shipping  the  goods  was  entered  into  by  tlie  parties, 
an«l  .such  a  contract  is  not  claimed.  But  it  is  insisted  that  as 
th»?  rulfs  were  public,  and  generally  understood,  it  must  be  pre- 
.suiii'- 1  rh.v  iissented.  For  the  imriin'^p  nf  creating  such  a  lien  on 
;  !:iW  win    ii'-v-r    i'  :  iiijit  mus.      'I'lnrc   13 

r    •:'  ••>'••  !  ..r  c(in.sii;iici'  f  ver 

!  I  .n  J£_liii:^kLjjadi 

jjuuad  b^'  Ihcm  tliu  rulu  could  create  no 


carrier's  compensation.  465 

We  held,  in  the  case  of  Illinois  Central  R.  R.  Co.  v.  Alexander, 
20  111.  23,  that  railroad  companies,  when  they  had  carried  goods  to 
their  destination,  if  not  removed  by  the  consignee,  might  store  them 
in  their  warehouses,  and  thus  terminate  their  liability  as  common 
carriers,  and  thereby  assume  the  relation  and  liabilities  of  ware- 
housemen. To  the  same  effect  is  the  case  of  Richards  v.  Michigan 
Southern  and  Northern  Indiana  R.  R.  Co.,  id.  404}  and  in  the  case 
of  Porter  v.  Chicago  and  Rock  Island  R.  R.  Co.,  id.  407,  it  was  held 
it  was  their  duty  to  do  so,  or  remain  liable  for  loss  as  common  car- 
riers. It  was  held  in  the  former  of  these  cases,  that  when  stored, 
and  they  had  placed  the  goods  in  their  warehouse,  they  were  entitled 
to  charge  the  customary  price  for  such  services,  and  on  such  charges 
being  paid  or  tendered,  and  a  refusal  by  the  company  to  deliver  on 
demand,  it  became  liable  for  a  conversion. 

The  right  to  demurrage,  if  it  exists  as  a  legal  right,  is  confined 
to  the  maritime  law,  and  only  exists  as  to  carriers  by  sea-going 
vessels.  But  it  is  believed  to  exist  alone  by  force  of  contract.  All 
such  contracts  of  affreightment  contain  an  agreement  for  demurrage 
in  case  of  delay  beyond  the  period  allowed  by  the  agreement  or  the 
custom  of  the  port  allowed  the  consignee  to  receive  and  remove  the 
goods.  But  the  mode_of^oing  business  by  the  two  kinds  of  carriers 
is  essentially  different.  Railroad  companies  have  warehouses  in 
which  to  store  freights.  Owners  of  vessels  have  noneT  Railroads 
discharge  cargoes  carried  by  them.  Carriers  by  ship  do  not,  but  it 
is  done  by  the  consignee.  The  masters  of  vessels  provide  in  the 
contract  for  demurrage,  while  railroads  do  not,  and  it  is  seen  these 
essential  differences  are,  under  the  rules  of  the  maritime  law, 
wholly  inapplicable  to  railroad  carriers. 

Perceiving  no  error  in  the  record,  the  judgment  of  the  Appellate 
Court  is  affirmed. 

Judgment  affirmed. 


POTTS  V.   NEW  YORK  &  NEW  ENGLAND  R.   CO. 

131  Mass.  455.     1881. 

Tort  for  the  conyersion_ofjij|Tiantity  of  coah  Answer,  a  general 
denial.  The  case  was^ubmitte^^  to  the  SuperTor  Court,  and,  after 
judgment  for  the  defendant,  to  this  court,  on  appeal,  upon  an 
agreed  statement  of  facts  in  substance  as  follows:  — 

The  plaintiff,  a  coal  merchant,  sold  to  a  firm  in  Southbridge,  in 
this  commonwealth,  a  large  quantity  of  coal,  and  shipped  205  tons 
thereof  by  a  schooner  to  Norwich,  Connecticut,  to  be  thence  trans- 
ported by  the  defendant  over  its  railroad  to  the  consignees  at  South- 
bridge.  The  defendant  received  the  coal  at  Norwich,  paying  the 
water  freight  to  discliarge  the  schooner's  lien,  amounting  to  $205, 

30 


466  CAKKIEKS    OF   GOODS. 

and  then  carried  the  coal  to  Southbridge,  and  delivered  to  the  con- 
signees all  but  Hi)  tons  tliereof .  no  part  of  the  advances  for  water 
freight  nor  the  defendant's  freight  being  paid.  On  the  arrival  at 
Southbridge  of  the  119  tons,  which  is  the  coal  in  controversy,  the 
consignees  having  failed,  the  plaintiff  duly  stopped  it  m  transitu, 
and  demanded  it  of  the  defendant.  The  defendant  refused  to  deliver 
it,  claiming  a  lien  on  it  for  the  entire  amount  of  the  water  freight 
on  the  whole  cargo  paid  by  the  defendant,  and  for  the  whole  of  the 
defendant's  freight  on  the  cargo,  amounting  in  all  to  $513.  The 
plaintiff  tendered  to  the  defendant  $297,  which  was  enough  to  cover 
the  water  freight  and  tlie  defendant's  freight  on  the  coal  in  ques- 
tion.    The  value  of  the  coal  in  controversy  was  S696. 

If  the  defendant  had  no  right  to  hold  the  coal  as  against  the  plain- 
tiff for  the  advances  and  freight  on  the  whole  cargo,  judgment  was 
to  be  entered  for  the  plaintiff  for  S398,  with  interest  from  the  date 
of  the  writ;  otherwise,  judgment  for  the  defendant. 

Gray,  C.  J.  A  carrier  of  goods  consigned  to  one  person  undej* 
one  contract  has  a  lien  upon  the  wliole  for  the  lawful  freight  and 
charges  on  every  part,  and  a  deliver}'  of  part  of  the  goods  to  the 
consignees  does  not  discharge  or  waive  that  lien  upon  tlie  rest  with- 
out proof  of  an  intention  so  to  do^  Sodergren  v.  Flight,  cited  in 
C^East,  622;  Abbott  on  Shipping  (7th  ed.),  377;  Lane  v.  Old 
Colony  Railroad,  14  Gray,  143;  New  Haven  &  Northampton  Co. 
V.  Campbell,  12S  Mass.  104.  And  when  the  consignor  delivers 
goods  to  one  carrier  to  be  carried  over  his  route,  and  thence  over  the 
route  of  another  carrier,  he  makes  the  first  carrier  his  forwarding 
agent;  and  the  second  carrier  has  a  lien,  not  only  for  the  freight 
over  his  own  part  of  the  route,  but  also  for  any  freight  on  the  goods 
paid  l)y  him  to  the  first  carrier.  Briggs  v.  Boston  »li:  Lowell  Bail- 
road,  6  Allen,  246,  250. 

The  right  of  stoppage  in  transitu  is  an  equitable  extension,  recog- 
nized by  the  courts  of  common  law,  of  the  seller's  lieu  for  the  price 
of  goods  of  whicli  the  buyer  has  acquired  the  property,  but  not  the 
possession.  Bloxam  v.  Sanders,  4  li.  &  C.  941,  948,  949,  and  7  D. 
&  R.  396,  405,  406;  Rowley  v.  Jiigelow,  12  Tick.  307,  313.  This 
right  is  indeed  paramount  to  any  lien,  created  by  usage  or  by  agree- 
ment between  the  carrier  and  tlie  consignee,  for  a  general  balance  of 
account.  Oi)penheim  v.  Russell,  3  B.  St,  V.  42;  Jackson  v.  Nichol, 
5  liing.  N.  C.  50S,  51S,  and  7  Sf'(itt,  577,  591.  See  also  Butler  i\ 
Woolcott,  2  N.  It.  64;  Sears  v.  Wills,  4  Allen,  212,  216.  liut  the 
common-law  lien  of  a  carrier  upon  a  particular  consignment  of  goods 
arises  from  the  act  of  the  consignor  liimsolf  in  delivering  the  goods 
to  be  carried;  and  no  authority  lias  been  cited,  and  no  reason  offereil, 
to  HUjiport  tlie  jtosition  that  tliis  lien  of  the  carrier  ujion  the  wliole  of 
the  Hamcconsigmuent  is  not  as  valid  against  the  consignor  as  against 
the  consi^^nee. 

■  I Kihpvcnt  fnr  the  drfcnrlavt. 


carrier's  compensation.  467 

CAMPBELL  V.    CONNER. 
70  N.  y.  424.     1877. 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  affirming  a  judgment  in  favor  of  plaintiff, 
entered  upon  a  verdict. 

This  action  was  brought  by  plaintiff  as  owner  of  the  bark  "  John 
Campbell,"  against  defendant,  sheriff  of  the  city  and  county  of  New 
York,  to  recover  damages  for  unlawfully  taking  and  removing  from 
said  vessel  a  quantity  of  flour,  and  for  detention  of  the  vessel.  The 
sheriff  sought  to  justify  by  virtue  of  certain  warrants  of  attachment 
against  the  shipper  of  the  flour  to  whom  bills  of  lading  had  been 
delivered.  The  flour  was  shipped  to  Hamburgh.  At  the  time  of 
the  seizure  the  attention  of  the  sheriff  was  called  by  plaintiff's  coun- 
sel to  the  fact  that  no  bond  of  indemnity  was  given,  as  required  by 
the  statute,  chap.  242,  Laws  of  1841,  and  he  was  forbidden  to  take 
the  goods;  he,  however,  persisted  in  so  doing,  detained  the  vessel, 
unloaded  and  carried  away  the  flour.  Upon  the  vessel  being  re- 
leased, the  master  procured  a  quantity  of  rosin  to  make  up  the  cargo, 
and  employed  a  stevedore  to  restow  the  cargo. 

The  seizure  of  the  vessel  and  flour  was  made  April  30,  1874;  at 
that  time  the  vessel  was  ready  and  about  to  go  to  sea,  and  on  May  10, 
1874,  as  soon  as  able  after  the  flour  was  removed,  she  left  port. 

The  bills  of  lading,  which  had  been  issued  for  the  flour,  were 
outstanding  at  the  time  of  trial. 

On  the  trial,  plaintiff's  counsel  stated  that,  unless  a  satisfactory 
bond  of  indemnity  was  given  to  indemnify  plaintiff  from  any  lia- 
bility on  the  bills  of  lading,  he  would  require  to  be  indemnified,  by 
a  verdict,  for  the  value  of  the  flour,  and  requested  defendant  to  fur- 
nish such  bond,  which  his  counsel  declined  to  do. 

The  court  directed  a  verdict  for  $9,207.57,  composed  of  the 
following  items :  — 

Further  facts  appear  in  the  opinion. 

Church,  Ch.  J.  The  principal  question  in  this  case  is,  whether) 
the  value  of  the  property  seized  and  removed  from  the  ship  was 
properly  included  as  an  item  of  damages,  which  the  plaintiff  was 
entitled  to  recover.  The  goods  had  been  shipped,  bills  of  lading' 
issued,  and  were  outstanding,  and  the  vessel  was  ready  to  sail  when 
the  attachments  were  levied  and  the  goods  taken.  The  freight  and 
charges  were  not  paid,  nor  was  any  bond  of  indemnity  given.  The 
sheriff  refused  to  give  any  bond  at  the  time  or  since.  It  did  not 
appear  on  the  trial  that  the  plaintiff  had  paid  but  a  small  amount, 
by  reason  of  the  bills  of  lading,  although  they  were  still  outstanding. 


468  CARRIERS    OF    GOODS. 

I  tisjvell  settled  at  common  law  i-^i^f-.  n.  shipppr  rnnnot  insist  npon 
having  liis  goods  relanded  and  delivered  to  him  at  the  port  of  outtit, 
without  paying  the  freight  and  indemnifying  the  master  against  the 
consequences  of  any  bill  of  lading  signed  bv  him.  Abbott  on  Ship- 
ping, 531,  505  [4th  ed.];  Bartlett  v.  Carnley,  6  Duer,  195. 

An  assignee  of  the  bills  of  lading  for  value  would  be  entitled  to 
the  property,  and  the  master  or  owner  would  be  estopped  from  donv- 
ing  that  he  had  the  good?!  L'S  L.  &  Jilq.  11.  I'lG.  Xeither  creditors 
nor  the  sheriff  can  acquire,  through  attachment  or  other  T)rocess, 
any  better  right  to  the  property  than  the  shipper  had.  G  Duer, 
sujjra. 

The  Act  of  1841,  chapter  242,  carries  out,  to  some  extent,  the 
common-law  rule  by  making  it  lawful  for  the  master  to  proceed  on 
the  voyage,  notwithstanding  the  issuing  of  any  attachment  unless 
a  bond  is  given  conditioned  to  pay  all  expenses,  damages,  and  charges 
which  may  be  incurred,  or  to  which  they  may  be  subjected  for  un- 
loading the  goods,  and  for  all  necessary  detention. 

Both  the  common  law  and  the  statute  recognize  the  right  of  the 
master  or  shipowner  to  a  lien  for  freight,  expenses,  and  charges,  and 
for  his  liability  upon  outstanding  bills  of  lading,  and  they  are  neces- 
sarily co-extensive  with  the  value  of  the  goods.  It  follows,  I  think, 
that  neither  the  owner  of  the  goods  nor  any  creditor  can  take  the 
goods,  without  first  giving  the  indemnity  which  the  common-law 
rule  and  the  statute  prescribe. 

An  attachment  cannot  be  levied.  The  sheriff  is  commanded  to 
levy  the  goods  of  the  defendant  in  the  action.  The  goods  in  ques- 
tion were  not  his  property.  A  lien,  in  the  nature  of  a  special  prop- 
erty, existed  in  favor  of  the  plaintiff  to  their  full  value.  Neither 
the  shi{iper  nor  slieriff  had  any  more  right  to  seize  the  goods,  with- 
out furnishing  indemnity,  than  any  stranger.  The  plaintiff  was 
entitled  to  hold  the  goods  as  his  security;  and,  if  taken  by  a  stranger, 
it  would  have  been  a  trespass,  for  which  the  plaintiff  could  recover 
their  value,  and  hold  the  proceeds  in  lieu  of  the  goods.  The  con- 
tention of  the  defendant  is  that  the  plaintiff  has  not  been  damnified. 
He  insists  that  the  rights  of  parties  are  the  same  as  if  the  action 
was  upon  the  bond,  if  one  had  been  given.  In  this,  I  think,  he  is 
in  error.  The  condition  precedent  to  his  right  to  interfere  with  the 
property  wa.s  the  indemnity  which  the  law  requires,  and,  without 
furnisliing  this  indemnity,  he  had  no  right  ami  was  a  trespasser, 
unless,  perhaps,  in;  could  show  bad  faitli  on  the  i»art  of  the  carrier. 
The  plaintiff  lield  the  ])roperty  as  his  security,  and,  when  unlawfully 
t'lken,  he  is  entitled  to  recover  its  value,  and  hold  the  amount  for 
the  same  purpose  and  to  the  same  extent  as  ho  held  the  property. 
If  h'  liability  ujion  the  l)ills  of  lading,  the  equitable  i)owers 

of  t.  ,  upon   njotion   or   byaetion,can   be  invokcrl   to  award 

rf'Stitution  to  the  owner  of  his  creditors,  but,  until   this   is  ascer. 
t;iincd,he  has  a  right  to  retain  the  proj)erty  or  its  value.     Any  other 


carrier's  compensation.  4G9 

rule  -would  destroy  the  protection  which  the  law  affords.  If  the 
plaintiff  could  not  recover  the  value  of  the  goods  in  this  action,  he 
might  be  remediless,  if  his  liability  upon  the  bills  of  lading  should 
afterward  be  enforced  against  him. 

I  assume  that  the  bond  required,  at  common  law  and  by  statute,  is 
an  indemnity  only.  If  the  defendant  had  complied  with  the  law 
and  furnished  the  bond,  he  would  have  been  in  a  condition  to  invoke 
the  rule  which  he  claims,  in  respect  to  damages,  but  this  he  has 
deliberately  refused  to  do.  He  was,  therefore,  a  wrong-doer  in 
taking  the  property,  and  the  legal  consequences  follow. 

The  judgment  must  be  affirmed. 


STEAMBOAT   VIEGINIA  v.   KRAFT. 
25  Mo.  76.     1857. 

One  Whiting,  acting  as  a  forwarding  merchant  in  New  Orleans, 
.shipped  for  St.  Louis,  per  the  steamboat  "Virginia,"  five  cases  of 
scythes.  When  said  goods  were  received  on  board  of  said  steam- 
Koat,  the  said  Whiting  demanded,  and  the  clerk  of  said  steamboat 
^aid  to  said  Whiting  the  sum  of  $153.42.  Said  sum  was  entered 
as  "charges"  in  the  bill  of  lading.  Of  said  sum  of  $153.42,  a  por- 
"tion  —  $147.92  —  formed  no  part  of  the  charges  paid  by  or  due 
Whiting  on  account  of  the  said  merchandise  shipped  on  the  "Vir- 
ginia ; "  it  was  a  charge  made  by  Whiting  on  account  of  the  former 
advances,  travelling  expenses,  lawyer's  charges  for  collecting,  etc. 
The  merchandise  shipped  by  said  Whiting  as  forwarding  agent  was 
delivered  to  E.  F.  Kraft  &  Co.,  the  owners  thereof,  at  St.  Louis, 
who  refused  to  pay  to  said  steamboat  the  said  item  of  $147.92, 
alleging  that  they  were  not  liable  therefor,  but  admitting  their  lia- 
bility to  the  extent  of  the  remaining  advances.  This  suit  was 
brought  in  behalf  of  said  steamboat  to  recover  said  sum  of  $153.42. 

The  jury  returned  a  verdict  for  plaintiff  for  the  whole  amount 
sued  for. 

Scott,  Judge.  In  the  case  of  White  v.  Vann,  6  Hump.  73,  the 
court  said  it  was  "proved  by  several  enlightened  merchants  and 
well-informed  owners  of  steamboats,  that  it  is  the  long  and  well- 
established  custom  and  usage  of  trade,  not  only  on  the  Tennessee 
River,  but  throughout  the  United  States,  for  freighters  of  goods  to 
advance  to  the  forwarding  agents  the  existing  charges  upon  them, 
which  the  consignees  and  owners  are  liable  to  refund;  that  this 
usage  is  indispensable  to  the  successf;;l  prosecution  of  commercial 
operations,  and  of  great  and  mutual  advantage  to  all  parties."     We 


470  CARRIERS    OF   GOODS. 

have  copied  the  above  extract  as  showing  the  usage,  because  upon 
examination  we  have  not  been  enabled  to  find  much,  if  anything,  in 
relation  to  it.  The  advantages  resulting  from  this  usage  are  so 
obvious  that  it  must  commend  itself  to  every  one;  and  we  should 
regret  to  see  it  a  stranger  to  our  courts.  lUit  advantageous  as  this 
usage  is  shown  to  be,  we  do  not  know,  nor  can  we  conceive  anytliing 
that  would  more  effectually  render  it  odious  than  such  an  extensicm 
of  it  as  would  make  it  cover  advances  for  claims  or  demands  on  the 
owner  or  consignees  wholly  foreign  to  and  disconnected  with  any^ 
cost  or  charge  for  transportation."  If  this  were  tolerated,  not  only 
the  forwarding  agent,  but  every  one  who  would  collude  with  him, 
might  obtain  payment  of  demands,  whose  justice  the  owners  or  con- 
signees refused  to  recognize.  It  would  be  the  introduction  of  a 
novel  mode  for  the  collection  of  debts  where  payment  had  been 
denied  on  the  ground  of  their  invalidity,  and  a  means  of  compelling 
the  owner  to  submit  to  unjust  exactions  or  to  refuse  him  his  goods. 

As  the  debt  paid  by  the  plaintiff  through  her  agent  was  in  nowise 
incurred  by,  or  in  any  way  connected  with,  the  transportation  of 
the  merchandise,  she  could  not  by  such  voluntary  payment,  unsup- 
ported by  any  usage,  make  herself  a  creditor  of  the  defendant.  Xor 
can  the  officers  of  the  plaintiff,  by  any  custom  or  usage,  ])rotect  her 
from  the  consequences  of  their  neglect  in  not  ascertaining  whether 
their  advances  were  the  costs  of  transportation.  Would  they 
advance  any  amount,  however  enormous,  and  expect  to  save  her 
from  loss  by  a  usage  which  did  not  require  them  to  ascertain  the 
validity  of  the  charges?  A  custom  to  encourage  negligence  at  the 
expense  of  others  would  scarcely  be  tolerated  by  the  law.  Being 
familiar  in  tlie  business  of  transjtorting  merchandise,  if  the  items 
ot  the  c-harges  were  ]>roduced  and  examined,  the  agent  could  see  at 
once  wliether  they  were  usual  and  ])r(iper. 

The  jtrinciple  th;it,  where  one  of  two  innocent  persons  must  suffer 
by  the  act  of  a  third,  he  should  bear  the  loss  who  has  placed  it  in 
the  power  of  the  third  person  to  do  the  injury,  has  no  application 
here.  The  plaintiff  is  not  an  innocent  party.  Her  agents  were 
guilty  of  gross  negligence  in  not  informing  themselves  of  the  nature 
of  the  charges  for  which  they  made  an  advance.  There  is  no  pre- 
tence in  tlie  circumstances  of  tlie  case  to  warrant  the  instruction  to 
the  efft'ct  tliat  tlie  doffiidants,  by  receiving  the  goods,  acknowledged 
the  justice  of  the  charges,  and  were  liable  to  pay  them,  unless  the 
plaintiff,  when  she  advanced  them  through  her  agent,  knew  that 
they  were  not  the  ordinary  and  usual  charges  incurretl  in  the  trans- 
portation and  shijtment  of  goods. 

Ah  the  cliarge  was  ilh-gal  and  unjust;  as  there  was  no  evidence 

'      '  the  defendants  were  aware  of  its  nature  wlien  tliey  received  the 

i-i;  as  tliey  objected  to  it  so  soon  as  it  was  known;  and  as  tliey 

could  not  contemidate  that  an  im^iroper  charge  would  lu'  made  against 

them, — there  is  no  foundation  for  the  jiresumjition  that  they  acqui- 


carrier's  compensation.  471 

esced  in  or  acknowledged  the  justice  of  the  phiintiff' s  demand.  The 
defendants,  upon  tendering  the  legal  advances,  would  have  been 
entitled  to  the  possession  of  their  goods,  and  might  by  an  action 
have  compelled  their  delivery.  As  they  have  them  lawfully  with- 
out suit,  there  is  no  reason  why  they  should  be  placed  in  a  worse 
situation  than  if  they  had  obtained  them  by  suit.  The  other  judges 
concurring,  the  judgment  will  be  reversed,  and  the  cause  remanded. 


WELLS   V.    THOMAS. 

27  Mo.  17.     1858. 

This  was  an  action  for  the  possession  of  an  omnibus.  The  cause 
was  tried  by  the  court  without  a  jury  upon  an  agreed  statement  of 
the  facts,  of  which  the  following  is  the  substance:  Plaintiffs  pur- 
chased the  omnibus  mentioned  in  the  petition,  of  the  value  of  five 
hundred  dollars,  of  John  Stephenson,  in  New  York,  and  instructed 
him  to  ship  it  to  them  at  St.  Louis,  Missouri.  Thereupon  said 
Stephenson,  for  the  plaintiffs,  on  the  24th  of  September,  1855,  made 
a  contract  with  the  New  York  Central  Railroad  Company  (being 
a  railroad  running  from  New  York  to  Buffalo,  in  the  State  of  New 
York)  to  deliver  said  omnibus  to  the  plaintiffs  at  St.  Louis  for 
the  sum  of  $-1:9.33.  The  bill  of  lading  (which  was  set  forth  in 
the  agreed  statement)  was  forwarded  to  plaintiffs  at  St.  Louis. 
Stephenson  delivered  the  omnibus  to  the  New  York  Central  Rail- 
road Company  to  be  transported  to  St.  Louis,  by  which  it  was  car- 
ried in  the  usual  mode  and  time  to  Buffalo,  and  there  delivered  to 
the  Michigan  Central  Railroad  Company,  which  transported  the 
same  to  Joliet.  At  Joliet  the  omnibus  w^as  delivered  to  the  Chicago. 
Alton,  and  St.  Louis  Railroad  Company  to  be  transported  to  St. 
Louis.  The  Chicago,  Alton,  and  St.  Louis  Railroad  Company  re- 
ceived said  omnibus  in  due  course  of  business,  without  any  notice  of 
any  special  contract  for  its  transportation,  and  paid  to  the  Michigan 
Central  Railroad  Company  the  sum  of  seventy-two  dollars,  the 
amount  of  their  bill  for  the  freight  on  the  omnibus  from  Buffalo  to 
Joliet,  and  the  charges  they  had  paid  on  receiving  the  same.  It  is 
customary  for  one  railroad  company,  when  receiving  goods  from 
another  railroad  company,  to  be  carried  forward  by  the  former,  to 
pay  the  freight  and  charges  upon  said  goods  and  property  up  to  the 
point  where  they  are  so  received.  Said  omnibus  arrived  in  St.  Louis, 
and  was  in  the  possession  of  defendant,  the  agent  of  the  Chicago, 
Alton,  and  St.  Louis  Railroad  Company.  The  defendant  notified 
plaintiffs  of  the  arrival  of  the  omnibus,  and  requested  them  to  call 
and  pay  freight  and  charges,  amounting  to  $il()-?.40.     TJie  plaintiff's 


472  CARRIERS   OF   GOODS. 

offered  to  pay  $40.33,  and  demanded  of  defendant  the_  omnibus^ 
Tlie  defendant  refused  to  deliver  it  until  the  freight  and  charges 
advanced  to  the  Michigan  Central  Railroad  Company  and  the  freight 
from  Joliet  to  St.  Louis,  the  latter  amounting  at  the  customary  rates 
to  S30.37,  should  be  paid.  The  plaintiffs  refused  to  pay  more  than 
the  amount  tendered.  There  was  nothing  in  the  amount  or  charac- 
ter of  the  charges  paid  by  the  Chicago,  Alton,  and  St.  Louis  Railroad 
Comjjany  to  the  Michigan  Central  Railroad  Company  to  excite  any 
suspicion  that  the  charges  were  uureasona"ble. 

The  court  decided  the  cause  for  the  plaintiffs.     A  motion  for  a 
review  was  made  and  overruled. 

Xai'ton,  Judge.     Upon  the  case  agreed,  our  opinion  is  that  the 
defendant  was  entitled  to  judgment." 

AVe  do~irot  see  how  the  contract  made  with  the  N^w  York  com: 
pany  is  to  bind  the  Alton  and  St.  Louis  Railroad  Com])any  without 
showing  some  privity  between  these  corporations  or  a  knowledge  of 
the  contract  on  the  part  of  the  Alton  and  St.  Louis  company.  No 
such  privity  is  shown,  nor  is  it  pretended  that  the  companies  at  this 
end  of  the  route  were  apprised  of  any  si)ecial  agreement  about  the 
freight.  The  cases  of  Fitch  &  Gilbert  v.  Newberry,  1  Dougl.  Mich., 
and  Robinson  v.  Baker,  5  Cush.  137  [480],  are  not  applicable.  The 
Illinois  Railroad  Comi)any  received  the  omnibus  in  the  usual  course  of 
trade  from  the  Michigan  company,  and  paid  tlie  freight  due  at  Joliet, 
as  the  Michigan  company  had  paid  what  was  due  at  Buffalo.  The 
omnibus  was  transported  by  the  route  desired  and  directed  by  the 
plaintiffs  and  indicated  by  the  bills  of  lading.  These  transporta- 
tion companies  received  the  omnibus  from  the  New  York  Railroad 
Company,  who  were  authorized  to  give  it  this  destination.  It  is  not 
the  case  of  goods  shipped  on  a  different  line  from  that  directed  by 
the  owner  or  sent  to  points  not  authorized. 

It  is  manifest  that  if  we  hold  the  carriers  at  this  end  of  the  route 
not  entitled  to  their  freight  because  of  a  contract  made  by  the  car- 
riers at  the  eastern  terminus,  of  which  they  had  no  knowledge,  great 
injustice  is  done  to  the  carriers  here,  and  still  greater  injury  inflicted 
upon  consignees.  The  carriers  must  protect  themselves  by  requir- 
ing freight  in  advance,  contrary  to  wliat  has  been  found  in  this  case 
to  be  the  establislied  custom. 

What  may  be  the  jjroper  construction  of  the  bill  of  lading  for- 
warded to  the  jdaintiffs  here  by  the  New  York  Central  Railroad 
Company  is  not  material  to  be  determined.  If  the  meaning  of  it  be 
as  intended  by  tlie  ]daintiffs,  tlie  New  York  company  is  of  course 
responsible;  but  this  is  no  reaaoii  why  defendants  should  lose  their 
lien.  If  any  arrangement  or  understanding  existed  among  these 
corporations  relative  to  through  transportation,  the  rule  would  be 
difFerent. 

The  judgment  is  reversed. 


carrier's  compensation.  473 


BEIGGS   V.   BOSTON   &  LOWELL   R.    CO. 

6  Alien  (Mass.),  246.     1863. 

Tort  for  the  conversion  of  sixty -seven  barrels  of  flour  Upon 
agreed  facts,  which  are  stated  in  the  opinion,  judgment  was  ren- 
dered in  the  Superior  Court  for  the  plaintiff,  for  the  amount  received 
by  the  defendants  upon  the  sale  of  the  flour  by  them,  deducting  the 
sum  claimed  by  them  as  the  amount  for  which  they  had  a  lien  on 
the  flour,  and  the  expenses  of  the  sale ;  and  the  defendants  appealed 
to  this  court. 

Merrick,  J.  The  plaintiff,  who  resides  at  Racine,  in  the  State 
of  Wisconsin,  delivered  the  flour,  the  value  of  which  he  seeks  to 
recover  in  this  action,  to  the  Racine  and  Mississippi  Railroad  Com- 
pany, taking  from  their  agents  a  receipt,  in  which  they  agreed  to 
forward  and  deliver  it  to  Franklin  E.  Foster,  at  Williamstown,  in 
this  State.  By  mistake  of  the  agents  of  that  company,  the  flour 
was  erroneously  directed  or  billed  to  Wilmington,  where  there  is  a 
freight  station  on  the  road  of  the  defendants.  It  was  carried  by 
the  Racine  and  Mississippi  Company  over  their  road,  and  at  its 
eastern  termination  delivered  to  the  carriers  next  in  succession  in 
the  line  and  route  from  Racine  to  Wilmington.  And  it  was  thus 
transported  by  the  successive  carriers  in  that  line  and  route  in  their 
vessels  and  cars  respectively,  according  to  the  bills  and  directions 
under  which  it  was  forwarded  from  Racine,  until  it  arrived  in  due 
time  at  Groton,  the  point  of  the  commencement  of  the  road  of  the 
defendants.  And  it  was  there  received  by  them,  they  paying  the 
freight  earned  by  all  the  preceding  carriers,  and  carried  to  Wil- 
mington, where  it  was  duly  deposited  in  their  freight  depot.  But 
Franklin  E.  Foster,  to  whom  it  was  directed,  did  not  reside  or  have 
any  place  of  business  at  Wilmington,  and  the  defendants  were 
unable  to  find  there  any  consignee  who  could  be  notified  of  its 
arrival,  or  to  whom  it  could  be  delivered.  The  defendants'  agents 
immediately  instituted  a  diligent  inquiry,  but  they  could  not  ascer- 
tain where  the  consignee  or  any  other  person  entitled  to  have  pos- 
session of  the  flour  was  to  be  found ,  or  could  be  notified.  At  the 
time  of  its  arrival  at  Wilmington  it  was  beginning  to  become  sour^ 
and  would  soon  have  greatly  deteriorated  in  value.  The  defendants 
kept  it  on  hand  in  store  for  about  two  months;  and  at  the  expira- 
tion  of  that  time,  still  unable  to  find  either  the  owner  or  thp  r^n-p-^ 
signee,  and  it  being  out  of  their  power  to  procure  a  warehouse  in 
which  they  could  store  it  for  a  longer  time,  they  caused  it  to  be  sold 
at  public  auction,  and  received  the  proceeds  of  the  sale,  which  they 
have  since  retained  in  their  possession. 


474  CARKIERS   OF   GOODS. 

Upon  these  facts,  the  plaintiff  in  the  first  place  contends  that  as 
Williamstown  was  the  i^lace  of  destination  of  the  flour  under  the 
directions  which  he  gave  to  the  Kacine  and  Mississippi  Eailroad 
Company,  and  according  to  their  agreement  in  the  receipt  given  for 
it  by  them  to  him  the  defendants  had  no  right  to  receive  the  flour 
at  Groton,  and  were,  guilty  of  the  unlawful  conversion  of  it  to  their 
own  use  by  transporting  it  thence  to  ^Vilmiugton;  although  in  such 
reception  and  transportation  of  it  over  their  road  they  acted  in  good 
faith,  and  strictly  in  conformity  to  the  bills  and  directions  which 
were  made  and  given  by  the  agents  of  the  Racine  and  ^lississippi 
Compan}',  and  by  which  it  was  regularly  accompanied  over  each  and 
all  the  lines  and  routes  of  the  successive  carriers. 

The  same  person  may  be,  and  often  is,  not  only  a  common  carrier 
but  also  the  forwarding  a^ent  of  tlie  owner  of  the  goods  to  be  trans- 
ported. Story  on  Bailm.  $§  o<i2,  ooT.  He  must  necessarily  act  in 
the  latter  capacity  whenever  he  receives  goods  which  are  to  be  for- 
warded  not  only  on  his  own  line,  but  to  some  distant  point  beyond 
it  on  the  line  of  the  next  carrier,  or  on  that  of  the  last  of  several 
successive  carriers  on  the  regular  and  usual  route  and  course  of 
transportation,  to  which  they  are  to  be  carried  and  delivered  to  the 
consignee.  The  owner  generally  does  not  and  cannot  always  accom- 
pany them  and  give  his  personal  directions  to  each  one  of  the  suc- 
cessive carriers.  He  therefore  necessarily,  in  his  own  absence, 
devolves  upon  the  carrier  to  whom  he  delivers  the  goods  the  duty, 
and  invests  him  with  authority  to  give  the  requisite  and  proper 
directions  to  each  successive  carrier  to  whom,  in  due  course  of 
transportation,  they  shall  be  passed  over  for  the  purpose  of  being 
forwarded  to  the  place  of  their  ultimate  destination.  Otherwise 
they  would  never  reach  that  place.  For  the  first  carrier  can  only 
transport  the  goods  over  his  own  portion  of  the  line;  and  if  he  is 
not  authorized  to  give  the  carrier  with  whose  route  his  own  connects 
directions  in  reference  to  the  further  transportation,  they  must  stop 
at  that  point;  for  although,  in  general,  every  carrier  is  bound  to 
accept  and  forward  all  goods  which  are  brought  and  tendered  to 
him,  yet  he  is  not  so  bound  unless  he  is  duly  and  seasonably  informed 
and  advised  of  the  place  to  which  they  are  to  be  transported.  Story 
on  I'.ailm.  §  olVJ-  Judson  v.  Western  Railroad,  4  Allen,  520  [185J. 

H'Miff  it  results  by  inevitable  imidication  that  when  an  ownur  of 

;^  ill-livers  tliciii  to  acarnor  to  be  trnns]>ortcd  over  his  roiite, 

'hence  over  the  route  of  a  succeeding  carrier,  or  the  rf>utes  of 

il  sueeessiye  carriers,  he  makes  and  constitutesTIie  })crs()ns  to 

'      '   '  ' '         '"'^     '^  I- warding  agents,  for  wliose  acts  in  tlie 

liimselt  res|)onsii)lc.     And  thereTorc 

ive  carriers  carry  the  t^'oods  according  to  tlie 

'■''"  ^^'  ^^'^'  forwarding  agents,  they  act  under 

r,  and  cannot  in  any  sense  17e  considered 

loiT;,  aiiiioii^ti  ihcy  are  carried  to  a  place  to  whichlie  did 


cakpjer's  compensation.  475 

not  intend  that  they  should  be  sent.  And  in  such  case  the  last  car- 
rier will  be  entitled  to  a  lien  upon  the  goods,  not  only  for  the 
freight  earned  by  him  on  his  nwn  pn.rt-,  nf  the  route,  but  also  for  all 
the  freight  which  has  been  accumulating;  from  the  commencement 
of  the  carriage  until  he  receives  them,  which,  according  to  a~virj 


convenient  custom,  which  is  now  fully  recognized  and  estaHIished 
as  a  proper  and  legal  proceeding.  he__has  paid  to  the  precediucr  onr- 
rierSi     Stevens  v.  Boston  &  WorcesteFRailroad,  8  Gray,  266. 

Applying  these  rules  and  principles  to  the  facts  developed  in  the 
present  case,  the  conclusion  is  plain  and  inevitable.  It  is  conceded 
by  the  plaintiff,  and  agreed  by  the  parties,  that  the  flour  was  carried 
by  the  Kacine  and  Mississippi  Railroad  Company  over  their  road, 
and  was  then  delivered  to  the  carrier  with  whose  route  their  own 
connected,  and  was  thence  transported  in  strict  compliance  with 
and  exactly  according  to  the  directions  given  by  them  and  contained 
in  the  bills  which  they  forwarded  with  and  caused  to  accompany 
the  flour  over  the  whole  route  from  Racine  to  Wilmington,  by  the 
several  successive  carriers,  and  among  others  by  the  defendants. 
The  Racine  and  Mississippi  Company  were  the  duly  constituted  for- 
warding agents  of  the  plaintiff;  and  as  the  defendants  acted  under 
their  authority,  they  rightfully  received  the  flour  at  Groton  and 
carried  it  to  Wilmington.  And  having  under  that  authority  paid 
all  the  freight  which  had  accumulated  in  the  whole  course  of  the 
conveyance,  including  that  which  had  been  charged  by  the  forward- 
ing agent,  up  to  the  time  when  they  received  the  flour,  they  were, 
as  soon  as  it  was  conveyed  to  and  deposited  in  their  own  freight 
house,  entitled  to  a  lien  thereon  for  the  entire  freight  thus  paid  and 
earned.  And  they  cannot,  either  by  the  transportation  of  it  under 
such  circumstances  over  their  own  road,  or  by  the  detention  thereof 
for  the  purpose  of  enforcing  their  lien  upon  it,  be  held  to  have 
unlawfully  converted  it  to  their  own  use. 

This  conclusion  does  not  at  all  conflict  with  the  decision  in  the  case 
of  Robinson  v.  Baker^  5  Cush.  137  [480],  upon  which  the  plaintiff, 
in  support  of  his  position,  chiefly  relies.  For  there  is  an  essential 
difference  between  the  facts  in  the  present  and  those  which  appeared 
in  that  case.  There  it  was  shown  that  the  plaintiff,  the  owner  of  a 
parcel  of  flour,  delivered  it  at  Black  Rock,  on  board  of  one  of  their 
canal  boats,  to  the  Old  Clinton  Line  Company,  who  gave  for  it  bills 
of  lading  in  duplicate,  wherein  they  undertook  and  agreed  to  trans- 
port it  to  Albany,  and  there  deliver  it  to  Witt,  the  agent  of  the 
Western  Railroad.  The  plaintiff  sent  one  of  these  bills  of  lading 
to  Witt  and  the  other  to  the  consignee  at  Boston,  thus  reserving  to 
himself  the  right  and  assuming  the  responsibility  of  giving  to  Witt 
the  directions  under  which  he  was  to  act.  The  service  which  the 
Old  Clinton  Line  Company  was  to  render  was  exclusively  in  their 
capacity  as  common  carriers.  They  had  only  to  carry  the  flour  to 
Albany  and  there  deliver  it  to  Witt.     They  had  no  other  duty  to 


476  CAKRIKKS    OF    GOODS. 

perform;  no  right  to  exercise  any  control  over  it  for  any  other  pur- 
pose. They  were  not,  therefore,  the  forwarding  agents  of  the 
plaintiff,  nor  invested  by  him  with  any  authority  to  give  directions 
as  to  further  transportation  of  the  flour,  or  to  make  any  other  dis- 
position of  it  than  its  delivery  to  Witt.  Yet  ujion  its  arrival  in 
Albany,  in  consequence  of  the  inability  of  "Witt  immediately  to 
receive  and  take  charge  of  it,  the  agents  of  the  Clinton  Line  Com- 
pany, without  right  and  in  violation  of  their  duty,  shipped  the  flour 
to  the  city  of  New  York,  and  from  there  to  Boston  in  the  schooner 
"Lady  Suffolk,''  whose  owners  claimed  a  right  to  detain  it  under 
lien  upon  it  for  the  freight.  But  the  court,  upon  the  general  prin- 
ciple that  if  a  carrier,  though  innocently,  receives  goods  from  a 
wrongdoer  without  the  consent  of  the  owner,  express  or  implied,  he 
cannot  detain  them  against  the  true  owners  until  the  freight  or 
carriage  is  paid,  determined  that  they  had  no  lien  upon  the  flour, 
and  that  their  claim  to  that  effect  could  not  be  sustained.  But  if 
tiiey  had  been  the  forwarding  agents  of  the  owner  he  would  have 
been  responsible  for  their  acts,  and  his  consent  to  the  diversion  of 
the  property  from  its  intended  route  of  transportation  would  have 
resulted  by  implication  from  their  directions,  and  the  respective  car- 
riers would  then  have  become  entitled  to  hold  it  under  a  lien  to 
secure  payment  of  the  freight. 

When  the  flour  had  been  carried  over  their  road  to  "Wilmington 
and  deposited  at  that  place  in  their  warehouse,  the  defendants  hadj 
as  has  been  sluTwn  above,  a  lien  upon  it  for  all  the  freight  which 
had  b^n  earned  in  its  transportation  from  Racine.  But  this  gave 
them  only  a  right  to  detain  it  until  they  were  paid;  not  to  sell  it  to 
obtain  the  remuneration  to  which  they  were  entitled.  In  the  case 
of  Lickbarrow  v.  Mason,  6  East,  21,  it  is  said  by  the  court  that  an 
owner  may  sell  or  dispose  of  his  proi)erty  as  he  pleases;  but  he  who 
has  a  lien  only  on  goods  has  no  right  to  do  so;  he  can  only  detain 
them  until  payment  of  the  sum  for  which  they  are  chargeable.  And 
the  rub;  whicli  is  now  well  established,  tliat  a  party  liaving  alien 
only,  without  a  power  of  sale  superadded  by  special  agreement,  can- 
not lawfully  sell  the  chattel  for  his  reimbursement,  is  as  applicable 
to  carriers  as  it  is  to  all  other  persons  having  the  like  claim  upon 
property  in  their  possession.  Jones  v.  Pearle,  1  Stra.  56;  2  Kent 
Com.  (6th  ed.),  642;  Doane  v.  Kussell,  3  Gray,  382.  It  is  in  dis- 
tinct recognition  of  this  principle  that  the  legislature  have  yirovided 
that  wlien  the  owner  or  consignee  of  fresh  meat,  and  of  certain  other 
enumerated  articles  liable  soon  to  perish  for  want  of  care,  shall  not 
pay  for  the  transportation  and  tak<!  tliem  away,  common  carriers 
who  have  a  lien  tljeroon  for  the  freight  may  sell  the  same  without 
any  delay,  and  liold  the  proceeds,  subject  to  their  own  lawful 
charges,  for  the  u.sc  of  the  owner.  And  such  also  is  the  provision 
in  relation  to  trunks,  parcels,  and  passengers'  effects  left  unclaimed 
at  any  passenger  station  of  a  railroad  company  for  a  period  of  six 


CARRIER'S    COiMPENSATION.  477 

months  after  arrival  and  deposit  therein.  Gen.  Sts.  c.  80,  §§1,2,  5. 
This  enumeration  of  particular  cases,  in  which  the  right  to  sell  and 
dispose  of  certain  goods  and  chattels  transported  is  conferred  upon 
common  carriers,  operates,  according  to  a  familiar  rule  of  law,  as  a 
denial  or  exclusion  of  their  right  in  all  other  instances.  j 

None  of  the  provisions  of  the  st.ntntft  rp.fprrpfl  tn  Rxtends  to  the 
case  of  flour  transported  in  barrels  as  an  article  of  merchandise. 
And  therefore  the  defendants  had  no  authority  under  the  statute 
and  no  right  at  law  to  sell  the  flour  which  belonged  to  the  plaintiff, 
although  they  had  a  valid  and  subsisting  lien  upon  it,  and  were 
unable  to  find,  after  diligent  inquiry,  where  the  person  to  whom  it 
ought  to  be  delivered  resided  or  had  his  place  of  business,  and  tjhere 
was  danger  of  its  becoming  worthless  by  longer  detention  of  it  in 
their  warehouse.  And  consequently  the  sale  which  they  made  wa.s_ 
an  unlawful  conversion  of  it  to  their  own  use  which  renders  them 
liable  in  an  action_0|f_ tort  to  theTwner,  for  its  value,  or  rather  for 
the  value  of  all  the  right  and  interest  which  he  at  that  time  had  in 
it,  which  is  the  merchantable  value  less  the  amount  of  the  lien  upon 
it.  The  plaintiff,  therefore,  may  maintain  this  action,  and  is 
entitled  to  recover  as  damages  the  balance  left  after  deducting  from 
the  sum  which  was  the  fair  merchantable  value  of  the  flour  at  the 
time  of  the  conversion  the  amount  for  which,  upon  the  principles 
before  stated,  they  had  a  lien  upon  it,  with  interest  from  the  time 
of  demand,  or  the  date  of  the  writ.  And^as  the  sale jwasjin lawful, 
the  expenses  incurred  in  making  it  cannot  be  proved  for  the  purposi^ 
of  diniinishing  the  damages  which  the  plaintiff  ought  to  recover. 

Judgment  is  therefore  to  be  rendered  for  him.  Unless  the  parties 
agree  upon  the  amount,  the  cause  must  be  sent  to  an  assessor,  or 
submitted  to  a  jury  if  either  party  requires  it,  to  assess  the 
damages. 


EGBERTS   V.   KOEHLEE. 

30  Fed.  R.  (U.  S.  C.  C.)  94.     1887. 

Deadt,  J.  This  action  was  brought  against  the  defendant,  the 
receiver  of  the  Gregon  «&  California  Railway,  to  recover  damages  for 
alleged  maltreatment  of  the  plaintiff  while  travelling  on  the  road 
between  Portland  and  Ashland,  Oregon.  The  cause  was  tried  with 
a  jury,  who  gave  a  verdict  for  the  defendant,  and  is  now  before  the 
court  on  a  motion  for  a  new  trial.  It  appeared  on  the  trial  that  the 
plaintiff  purchased  from  the  defendant  a  combination  ticket  from 
Portland  to  San  Francisco,  where  he  resided,  and  started  on  the 
south-bound  Oregon  &  California  train  on  July  13,  1885;  that  about 
200  miles  south  of  Portland  the  conductor  cut  off  from  said  com- 


47S  CARRIERS    OF   GOODS. 

bination  ticket  and  took  up  the  coupon,  entitling  the  plaintiff  to 
transportation  on  the  railway  between  Portland  and  Ashland,  a 
distance  of  about  300  miles,  and  gave  him  his  private  check  for 
future  identification;  that  at  Grant's  Pass,  a  station  some  miles 
south  of  Koseburg,  the  plaintiff  was  left  behind,  and  a  large  leather 
valise  belonging  to  .him  was  carried  on  the  train  to  Ashland.  The 
next  passenger  train  going  south  passed  Grant's  Pass  in  the  evening 
of  July  14th,  and  the  plaintiff  got  on  the  same,  when  the  conductor, 
in  obedience  to  the  rules  of  the  company,  demanded  his  fare  to 
Ashland,  §1.79,  which  the  plaintiff'  refused  to  pay,  alleging  that  he 
had  paid  his  fare  once,  and  had  been  left  behind  by  the  misconduct 
of  the  conductor  on  the  train  of  the  day  previous;  to  which  the  con- 
ductor replied  that  he  would  give  him  a  receipt  for  the  payment, 
and,  if  his  statement  proved  correct,  the  money  would  be  refunded 
to  him.  The  plaintiff  still  refused  to  pay,  and  suggested  to  the  con- 
ductor that  he  might  put  him  off  the  car,  to  which  the  latter  replied 
that  he  would  hold  his  valise  for  the  fare.  When  the  train  arrived 
at  Ashland,  the  plaintiff  attempted  to  take  his  valise  out  of  the 
office  where  it  had  been  deposited  the  day  before,  which  the  con- 
ductor resisted,  and,  with  the  aid  of  a  brakeman,  finally  prevented. 

The  plaintiff  in  his  testimony  attributed  his  being  left  at  Grant's 
Pass  to  the  misconduct  of  the  conductor  in  starting  the  train  with- 
out warning,  and  without  waiting  the  usual  time.  But  on  the  whole 
evidence  it  was  so  manifest  that  his  testimony  was  grossly  and  wil- 
fully false  in  this  respect,  and  that  he  was  left  in  consequence  of 
his  own  wilfulness  in  leaving  the  train  just  as  it  was  about  to  start, 
and  after  he  was  warned  of  the  fact,  and  going  some  distance  from 
the  track  to  get  something  to  eat,  that  his  counsel  abandoned  the 
claim  for  damages  on  that  account  before  the  jury,  and  only  asked 
a  verdict  for  the  alleged  mistreatment  of  the  plaintiff  at  Ashland  in 
the  struggle  for  the  possession  of  the  valise. 

The  court  instructed  the  jury  that,  if  tiiey  believed  the  plaintiff's 
statement  about  the  affray  at  Ashland  arising  out  of  his  attempt  to 
possess  himself  of  the  valise,  they  ought  to  find  a  verdict  for  him, 
but  if  they  did  not  believe  it,  and  were  satisfied  that  the  conductor 
used  only  such  force  as  was  necessary  and  proper  to  prevent  the 
plaintiff  from  taking  the  valise  out  of  the  possession  of  the  defend- 
ant without  first  i)aying  the  extra  fare,  they  ought  to  find  for  the 
defendant.  In  this  connection  the  court  also  instructed  the  jury 
tiiut  under  tlie  circumstances  the  defendant  had  a  lien  on  the  jjlain- 
tiff's  valise  for  his  fare  from  Grant's  Pass  to  Ashland  on  July  14th, 
and  therefore  the  conductor  had  a  right  to  retain  the  possession  of 
the  same  until  such  fare  was  jaid.  To  this  latter  instruction  coun- 
sel ffir  tlie  plaintiff  then  excepted,  and  now  asks  for  a  new  trial  on 
acctnint  thereof. 

A  carrier  of  passengers  is  responsible,  as  a  common  carrier,  for 
the  baggage  of  a  passenger,  when  carried  on  the  same  conveyance  as 


carkier's  compensation.  479 

the  owner  thereof.  The  transportation  of  the  baggage,  and  the  risk 
incurred  by  the  carrier,  is  a  part  of  the  service  for  which  the  fare  is 
charged.  Hollister  v.  Nowlen,  19  Wend.  230  [173] ;  Cole  v.  Good- 
win, id.  257;  Powell  v.  Myers,  26  Wend.  5^4  [342];  Merrill  v. 
Grinnell,  30  N.  Y.  609;  Burnell  v.  New  York  Cent.  Ry.  Co.  45 
N.  Y.  186;  Thomp.  Carr.  520,  §8;  Story,  Bailni.  §  499.  Corre- 
spondingly, a  carrier  of  passengers  has  a  lien  on  the  baggage  that 
a  passenger  carries  with  him  for  pleasure  or  convenience.  Overt 
Liens,  §  142;  TJaoiup.  Carr.  524,  §  11;  Ang.  Carr.  §  375;  2  Eor. 
Rys.  1003,  §  11.  But  this  lien  does  not  extend  to  the  clothing  or 
other  personal  furnishings  or  conveniences  of  the  passenger  in  his 
immediate  use  or  actual  possession,  liamsden  v.  Boston  &  A.  Ey. 
Co.,  104  Mass.  121. 

A  ticket  for  transportation  on  a  railway  between  certain  termini, 
which  is  silent  as  to  the  time  when  or  within  which  it  may  be  used, 
does  not  authorize  the  holder  to  stop  over  at  any  point  between  such 
termini,  and  resume  his  journey  thereon  on  the  next  or  any  follow- 
ing train.  The  contract  involved  in  the  sale  and  purchase  of  such  a 
ticket  is  an  entire  one,  and  not  divisible.  It  is  a  contract  to  carry 
the  passenger  through  to  the  point  of  his  destination  as  one  con- 
tinuous service,  and  not  by  piecemeal,  to  suit  his  convenience  or 
pleasure.  2  Pvor.  Rys.  971,  §  10;  2  Wood,  Ry.  Law,  §  347;  Cleve- 
land, &c.  Ry.  Co.  V.  Bartram,  11  Ohio  St.  457;  Drew  v.  Central 
Pac.  Ry.  Co.,  51  Cal.  425. 

Admitting  these  legal  propositions,  counsel  for  the  plaintiff  insists 
that  the  defendant  had  no  lien  on  the  valise  in  question,  and  there- 
fore no  right  to  retain  it;  and  in  support  of  this  proposition  he 
ingeniously  argues  that  the  journey  from  here  to  Ashland  was 
divided  into  two  distinct  parts,  — one  from  Portland  to  Grant's  Pass 
on  July  13th,  for  which  his  fare  was  paid  to  Ashland,  and  on  which 
the  valise  went  through  to  that  point,  and  one  from  said  pass  to 
Ashland,  on  which,  although  no  fare  was  paid,  yet  no  baggage  was 
carried. 

Before  considering  this  proposition,  it  is  well  to  remember  that 
the  undertaking  of  the  company  to  transport  this  valise,  as  baggage, 
was  only  incidental  to  the  principal  undertaking  to  carry  the  owner 
thereof;  and,  when  the  latter  was  performed  or  discharged,  the 
former  was  also.  Therefore,  if  the  journey  in  reference  to  Avhich 
the  defendant  undertook  to  carry  the  same  ended,  by  the  act  of  the 
plaintiff,  at  Grant's  Pass,  the  carriage  of  the  valise  from  there  to 
Ashland  on  the  same  train  was  an  additional  service  performed  for 
him,  for  which  the  defendant  was  entitled  to  an  additional  compen- 
sation as  the  carrier  of  so  much  freight,  and  a  lien  thereon  for  the 
same ;  for  a  traveller  is  not  entitled  to  have  his  personal  baggage 
carried  in  consideration  of  the  fare  paid  by  him,  unless  it  is  on  the 
same  train  which  carries  him.     Thomp.  Carr.  521,  §  8. 

But,  in  my  judgment,  the  transaction  must  be  regarded,  for  the 


4S0  CAKRIERS   OF   GOODS. 

purpose  of  this  question,  as  one  journey,  in  the  course  of  which  the 
plaintiff  iucurrecl  an  additional  charge  of  $1.79  for  transportation. 
In  etlect.  the  )ilaintiff  paid  his  fare  to  Ashland  on  the  train  of 
July  13th.  with  the  privilege  of  stoiii)ing  over  at  Grant's  I'ass,  and 
tinishing  the  journey  on  the  nexfUay^  train,  on  the  ]xiynu'nt  vi  the 
extra  cliarge  of  $il.7U.  He  saw  pro])er  to  avail  hinist-ll'  of  this 
privilege,  and  therebv  became  indebted  to  the  defendant  accord- 
mgly.  And  whether  the  plaintiff'  allowed  his  baggage  to  be  carried 
through  on  the  lirst  train,  or  kejjt  it  with  him,  the  defendant  had  a^ 
lien  on  it  for  all  the  unpaid  charges  for  transportation  which  the 
plaintiff  incurred  during  the  journey.  There  was  but  one  contract 
for  the  transportation  of  the  plaintiff,  including  his  baggage,  which 
was  modified  or  altered,  in  the  course  of  its  performance. by  his  own 
act  or^tmission. 

Suppose  there  were  first  and  second-class  carriages  on  this  road, 
and  on  July  13th  the  plaintiff  paid  for  and  took  passage  in  one  of 
the  latter  for  Ashland,  but,  arriving  at  Grant's  Pass,  he  got  into 
one  of  the  former,  and  rode  to  Ashland,  refusing  to  pay  the  addi- 
tional fare  when  demanded,  can  there  be  any  doubt  that  the  defend- 
ant would  have  a  lien  on  his  baggage  for  the  same,  and  might,  if  he 
had  or  got  possession  of  it,  retain  it  until  such  fare  was  paid?  Cer- 
tainly not.  Substantially,  tliis  is  the  parallel  of  the  plaintiff's  case. 
The  defendant  was  clearly  in  the  right  in  detaining  the  valise  until 
the  fare  was  paid,  and  the  plaintiff  was  as  clearly  in  the  wrong  in 
attempting  to  take  it  without  doing  so.  Indeed,  his  conduct  through- 
out this  transaction  looks  very  much  like  he  was  playing  a  game  to 
involve  the  defendant  in  a  lawsuit  out  of  which  he  might  make  some 
money. 

The  motion  for  a  new  trial  is  disallowed. 


ROBIN S(JN    V.    BAKER. 
5  Cush.  (Mass.)  137.     1849. 

Tins  was  an  action  of  re]dcvin,  for  six  hundred  Ijarrols  of  flour, 
tried  before  Dkwkv,  J.,  and  reported  by  him  for  the  consideration 
of  the  whole  court.     The  material  facts  are  as  follows:  *  — 

The  plaintiff",  in  October,  1S47,  by  his  agent,  purchased,  at 
Buffalo,  000  barrels  of  flour,  wliicli  the  agent  caused  to  be  put  on 
board  a  canal  boat,  to  Ije  transferred  to  Albany.  The  boat  was 
owned  by  a  comi)any  known  l)y  the  name  of  the  Old  Clinton  Line, 
engaged  in  tlie  business  of  common  carriers  between  liuffalo  and 
Albany.     On  receiving  the  flour,  the  agent  of  the  company  executed 

J  The  stntcnicnt  of  f..  i.  i«  ■,1,n.l".il. 


carrier's  compensation.  481 

and  delivered  to  plaintiff's  agent  duplicate  bills  of  lading,  by  which 
the  company  undertook  to  deliver  the  flour  to  the  agent  of  the  Wes- 
tern Railroad  at  East  Albany.  On  the  arrival  of  the  flour  at  Albany, 
Nov.  5,  1847,  the  agents  of  the  Old  Clinton  Line  informed  the  agent 
of  the  Western  Railroad  of  the  fact,  asking  him  if  he  would  take  it 
oti:  the  boat  that  day.  On  his  refusal  to  do  so,  by  reason  of  the  fact 
that  other  boats  were  to  be  first  unloaded,  the  agents  of  the  Old 
Clinton  Line  shipped  the  flour  to  New  York  City  by  the  Albany  and 
Canal  Line,  common  carriers  engaged  in  the  transportation  of  mer- 
chandise between  that  city  and  Albany,  requesting  that  company  to 
ship  the  flour  from  New  York  to  Boston  for  the  plaintiff;  which  was 
done  by  the  agent  of  the  Albany  and  Canal  Line  at  New  York, 
placing  the  flour  on  board  a  schooner  of  which  defendant  was  mas- 
ter, consigned  to  the  agents  of  the  Albany  and  Canal  Line  at  Boston, 
with  directions  to  deliver  the  flour  to  plaintiff  on  his  paying,  or 
agreeing  to  pay,  the  freight  by  the  Old  Clinton  Line,  and  also  by 
the  Boston  and  Albany  Line,  and  the  freight  also  from  New  York 
to  Boston.  On  the  arrival  of  defendant's  vessel  at  Boston,  Nov.  23, 
1847,  plaintiff  demanded  the  flour  which  defendant  refused  to  deliver, 
on  the  ground  that  he  had  a  lien  thereon  for  freight. 

Fletcher,  J.  [After  stating  the  facts,  the  instructions  requested, 
and  the  instructions  given.]  As  the  ruling  of  the  judge,  that  the 
defendant,  as  a  carrier,  had  a  lien  for  his  freight,  was  placed  upon 
grounds  wholly  independent  of  any  rightful  authority  in  the  agents 
of  the  Old  Clinton  Line  and  the  Albany  and  Canal  Line,  to  divert 
the  goods  from  the  course  in  which  the  plaintiff  had  directed  them 
to  be  sent,  and  to  forward  them  by  the  defendant's  vessel,  and 
wholly  independent  of  the  plaintiff's  consent,  express  or  implied, 
the  simple  question  raised  in  the  case  is_ whether,  if  a  common  car- 
rier  honestly  and  fairly  on  his  part,  without  any  knowledge  or  sus- 
picion of  any  wrong,  receives  goods  from  a  wrongdoer,  without  the 
consent  of  the  owner,  express  or  implied,  he  may  detain  them  against 
the  true  owner,  until  his  freight  or  hire  for  carriage  is  paid ;  or  to 
state  the  question  in  other  words,  whether,  if  goods  are  stolen  and 
delivered  to  a  common  carrier,  who  receives  them  honestly  and  fairly 
in  entire  ignorance  of  the  theft,  he  can  detain  them  against  the  true 
owner  until  the  carriage  is  paid. 

It  is  certainly  remarkable  that  there  is  so  little  to  be  found  in 
the  books  of  the  law,  upon  a  question  which  would  seem  likely  to 
be  constantly  occurring  in  the  ancient  and  extensive  business  of  the 
carrier.  In  the  case  of  York  v.  Grenaugh,  2  Ld.  Ray.  SQ>6,  the 
decision  was,  that  if  a  horse  is  put  at  the  stable  of  an  inn  by  a 
guest,  the  innkeeper  has  a  lien  on  the  animal  for  his  keep,  whether 
the  animal  is  the  property  of  the  guest  or  of  some  third  party  from 
whom  it  has  been  fraudulently  taken  or  stolen.  In  that  case,  Lord 
Chief  Justice  Holt  cited  the  case  of  an  Exeter  common  carrier, 
where  one  stole  goods  and  delivered  them  to  the  Exeter  carrier,  to 

31 


4S2  CARRIERS   OF   GOODS. 

be  carried  to  Exeter;  the  right  owner,  finding  the  goods  in  posses- 
sion of  the  carrier,  demanded  them  of  him;  upon  which  the  carrier 
refused  to  deliver  them  unless  he  was  first  paid  for  the  carriage. 
The  owner  brought  trover,  and  it  was  held  that  the  carrier  might 
justify  detaining  the  goods  against  the  right  owner  for  the. carriage; 
for  when  they  were  brought  to  him,  he  was  obliged  to  receive  them 
and  carry  them,  and  therefore,  since  the  law  compelled  him  to  carry 
them,  it  will  give  him  a  remedy  for  the  premium  due  for  the  car- 
riage. Powell,  J.,  denied  the  authority  of  the  case  of  the  Exeter 
carrier,  but  concurred  in  the  decision  as  to  the  innkeeper.  There  is 
no  other  report  of  the  case  of  the  Exeter  carrier  to  be  found.  Upon 
the  authority  of  this  statement  of  the  case  of  the  Exeter  carrier,  the 
law  is  laid  down  in  some  of  the  elementary  treatises  to  be,  that  a 
carrier,  who  receives  goods  from  a  wrongdoer  or  thief,  may  detain 
them  against  the  true  owner  until  the  carriage  is  paid. 

In  the  case  of  King  v.  Richards,  G  Whart.  418,  the  court,  in  giv- 
ing an  opinion  upon  another  and  entirely  different  and  distinct 
point,  incidentally  recognized  the  doctrine  of  the  case  of  the  Exeter 
carrier.  But  until  within  six  or  seven  years  there  was  no  direct 
adjudication  upon  this  question  except  that  referred  to  in  York  v. 
Grenaugh  of  the  Exeter  carrier.  In  1843  there  was  a  direct  adjudi- 
cation upon  the  question  now  under  consideration  in  the  Supreme 
Court  of  Michigan,  in  the  case  of  Fitch  v.  ypwbevry.  1  Doug.  1. 
The  circumstances  of  that  case  were  very  similar  to  those  in  the 
present  case.  There  the  goods  were  diverted  from  the  course 
autliorized  by  the  owner,  and  came  to  the  hands  of  the  carrier  with- 
out the_consent  of  the  owner,  express  or  implied;  the  carrier,  hmx" 
ever,  was  wholly  ignorant  of  that,  and  supposed  they  were  rightfully 
d (.  1  i vered  to  him;  and  he  claimed  the  right  to  detain  them  until  paid 
for  tlie  carriage.  The  owner  refused  to  pay  the  freight,  and  brouL^ht 
an  action  of  replevin  for  the  goods.  The  decision  was  against  the 
carrier.  The  general  i)rinciple  settled  was,  that  if  a  oonnnon  car- 
rier  obtain  possession  of  goods  wrongfully  or  without  the  consent  of 
the  owner,  express  or  implied,  and  on  demand  refuse  to  deliver  them 
to  the  owner,  such  owner  may  bring  replevin  for  the  goods  or  trover 
for  their  value.  The  case  appears  to  have  been  very  fully  con- 
sidered, and  the  decision  is  supported  by  strong  reasoning  and  a 
very  elaborate  examination  of  authorities.  A  very  obvious  distinc- 
tion wa.s  sujjposed  to  exist  between  the  cases  of  carriers  and  inn- 
keepers, though  the  distinction  did  not  affect  the  determination  of 
the  case. 

This  d<'cision  is  supported  by  Mic  (Msr-  nl  I'liisliirk  r,  I'luil),  2IIiill. 
rtf}\.  'I'lific  pi-<){)iTty  was  sold  on  a  roiiditinn,  whioh  tlic  luiycr  failed 
to  comply  with,  ami  shipp^'il  tlie  .rndils  on  board  the  defendant's 
vc ■•"•]■  « ';i  tlif«lefftidant\s  refusal  to  deliver  the  uoods  to  the  owner 
li»  Liid  was  allowed  to  recover  the  value,  althouj^h 

til'  ...V ,..,led  on  the  right  of  lieu  for  flir  frci/ht. 


carrier's  compensation.  483 

Thus  the  case  stands  upon  direct  and  express  authorities.  How 
does  it  stand  upon  general  principles?  In  the  case  of  Saltus  v. 
Everett,  20  Wend.  267,  275,  it  is  said :  "  The  universal  and  funda- 
mental principle  of  our  law  of  personal  property  is,  that  no  man  can 
be  divested  of  his  property  -vvithout  his  consent,  and  consequently, 
that,  even  the~lionest  purchaser  under  a  defective  title  cannot  hold 
against  the  true  proprietor."  There  is  no  case  to  be  found,  or  any 
reason  or  analogy  anywhere  suggested,  in  the  books,  which  would 
go  to  show  tliat  the  real  owner  was  concluded  by  a  bill  of  lading  not 
given  by  himself,  but  by  some  third  person,  erroneously  or  fraudu- 
lently. If  the  owner  loses  his  property,  or  is  robbed  of  it,  or  it  is 
sold  or  pledged  without  his  consent,  by  one  who  has  only  a  tem- 
porary right  to  its  use  by  hiring  or  otherwise,  or  a  qualified  posses- 
sion of  it  for  a  specific  purpose,  as  for  transportation,  or  for  work 
to  be  done  upon  it,  the  owner  can  follow  and  reclaim  it  in  the 
possession  of  any  person,  however  innocent. 

Upon  this  settled  and  universal  principle,  that  no  man's  property 
can  be  taken  from  him  without  his  consent,  express  or  implied,  the 
books  are  full  of  cases,  many  of  them  hard  and  distressing  cases, 
where  honest  and  innocent  persons  have  purchased  goods  of  others, 
apparently  the  owners,  and  often  with  strong  evidence  of  ownership, 
but  who  yet  were  not  the  owners,  and  the  purchasers  have  been 
obliged  to  surrender  the  goods  to  the  true  owners,  though  wholly 
without  remedy  for  the  money  paid.  There  are  other  hard  and 
distressing  cases  of  advances  made  honestly  and  fairly  by  auc- 
tioneers and  commission  merchants,  upon  a  pledge  of  goods  by  per- 
sons apparently  having  the  right  to  pledge,  but  who,  in  fact,  had 
not  any  such  right,  and  the  pledges  have  been  subjected  to  the  loss 
of  them  by  the  claim  of  the  rightful  owner.  These  are  hazards  to 
which  persons  in  business  are  continually  exposed  by  the  operation 
of  this  universal  principle,  that  a  man's  property  cannot  be  taken 
from  him  without  his  consent.  Why  should  the  carrier  be  exempt 
from  the  operation  of  this  universal  principle?  Why  should  not_tEe 
principle  of  caveat  emptor  apply  to  him?  The  reason,  and  the  only 
reason,  given  is,  that  he  is  obliged  to  receive  goods  to  carry,  and 
should  therefore  have  a  right  to  detain  the  goods  for  his  pay.  ]>ut" 
he  is  not  bound  to  receive  goods  from  a  wrongdoer.     He  is  bound 


only  to  receive  goods  from  one  who  may  rightfull}^  deliver  them  to 
him,  and  he  can  look  to  the  title,  as  well  as  persons  in  other  pur- 
suits and  situations  in  life.  Nor  is  a  carrier  bound  to  receive 
goods,  unless  the  freight  or  pay  for  the  carriage  is  first  paid  to 
him;  and  he  may,  in  all  cases,  secure  the  payment  of  the  carriage 
in  advance.  In  the  case  of  King  v.  Richards,  6  Whart.  418,  it 
was  decided  that  a  carrier  may  defend  himself  from  a  claim  for 
goods  by  the  person  who  delivered  them  to  him,  on  the  ground  that 
the  bailor  was  not  the  true  owner,  and  therefore  not  entitled  to  the 
goods. 


484  CARRIERS   OF   GOODS. 

The  common  carrier  is  responsible  for  the  wrong  delivery  of 
goods,  though  innocently  done,  upon  a  forged  order.  Why  should 
not  his  obligation  to  receive  goods  exempt  him  from  the  necessity 
of  determining  the  right  of  the  person  to  whom  he  delivers  the  goods, 
as  well  as  from  the  necessity  of  determining  the  right  of  the  person 
from  whom  he  receives  goods?  Upon  the  whole,  the  court  are  satis- 
tied  that  upon  the "  adjudged  cases,  as  well  as  on  general  principles, 
the  ruling  in  this  case  cannot  be  sustained,  and  that  if  a  carrier 
receives  goods,  though  innocently,  from  a  wrongdoer,  without  the 
consent  of  the  owner,  express  or  implied,  he  cannot  detain  them 
against  the  true  owner,  until  the  freight  or  carriage  is  paid. 


BASSETT   V.    SPOFFORD. 
45  N.  y.  3S7.     1S71. 

Appeal    from   the    General   Term    of    the   New   York   Common 
Pleas. 

The  action  was  replevin  for  four  cases  of  shoes,  which  came  to 
the  possession  of  the  defendant's  testator  from  one  Careras,  to  be 
carrit-il  and  conveyed  on  steamer  from  New  York  to  Havana,  con- 
signed  to  one  Oliver.  At  the  time  the  plaintiff,  by  his  agent, 
notified  the  testator  and  the  master  and  officers  of  the  steamer  of 
his  claim,  and  demanded  a  delivery  of  the  propertj',  the  cases  were 
stowed  in  the  hold  of  the  vessel  and  difficult  of  access,  and  incapable 
of  delivery,  except  with  considerable  labor  and  at  some  expense. 
The  delivery  would  have  delayed  the  departure  of  the  vessel,  which 
was  about  to  commence  her  voyage.  There  was  evidence  tending  to 
show  that  bills  of  lading  for  the  property  had  been  issued  in  the 
usual  form,  before  any  notice  of  the  plaintiff's  claim.  Tho  plaintiff 
claimed  as  owner.  He  was  a  residt'nt  of  Hoston,  and  contracted  to 
sell  four  cases  of  slioes  to  Careras,  to  be  delivered  in  New  York,  and 
paid  for  on  delivery.  The  shoes  were  forwarded  to  New  York  by 
railroad  and  steamboat,  the  plaintiff  taking  a  receipt  for  their  car- 
riage and  giving  the  same  to  a  clerk,  whom  lie  sent  with  the  goods 
to  New  York,  with  directions  to  deliver  the  goods  to  the  purchaser 
on  receiving  the  pay  therefor.  On  his  arrival  in  New  York  the 
eleik  ealled  on  Carcras,  and  informed  him  of  the  arrival  of  tlic 
•  he  was  ready  to  deliver  them  on  receipt  of  tlie  pur- 
ci  lie  was  informed  by  Careras  that  he  would  be  pre- 

p?i  .  nt  a  Intnr  hour  of  the  day ;  but  as  the  clerk  was  leaving, 

Ca:  luld  like  to  examine  the  goods,  aniLthe 

l)i;.  ^  given  him  "  for  the  purpose  of  examin- 


carrier's  compensation.  485 

ing  the  goods."  The  clerk  called  at  one  o'clock,  the  time  appointed, 
for  the  payment  of  the  money,  and  was  promised  it  at  three  o'clock 
of  the  same  day.  On  calling  at  the  last-named  hour,  the  payment 
was  again  deferred,  and  he  then  went  to  look  after  the  goods  and 
found  they  had  been  removed.  They  were  traced,  to  the  testator's 
ship,  to  which  they  had  been  taken  by  Careras,  and  put  on  board  for 
transportation  to  Havana,  consigned  to  one  Oliver.  The  plaintiff 
demanded  his  goods,  and  upon  their  non-delivery  this  action  was 
brought. 

At  the  close  of  the  trial  the  plaintiff  asked  the  court  to  direct  a 
verdict  for  the  plaintiff,  on  the  grounds :  1st.  That  the  goods  were 
feloniously  obtained  by  Careras,  and  2d.  That  there  was  no  evi- 
dence for  a  delivery  of  the  bill  of  lading,  and  a  verdict  was  ordered 
as  requested,  to  which  the  defendant  excepted.  The  judgment 
entered  upon  the  verdict  was  affirmed  by  the  General  Term  of  the 
Common  Pleas  of  :New  York  City,  and  from  the  latter  judgment  the 
defendant  has  appealed  to  this  court. 

Allen,  J.  By  the  larcenous  taking  of  chattels  the  owner  is  not 
divested  of  his  property,  and  a  transfer  to  a  purchaser  does  not 
impair  the  right  of  the  true  owner.  A  purchase  of  stolen  goods 
either  directly  from  the  thief  or  from  any  other  person,  although  in 
the  ordinary  course  of  trade  and  in  good  faith,  will  not  give  a  title 
as  against  the  owner.  Injhe  case  of  a  felonious  taking  of  goods. 
the  owner  may  follow  and  reclaim  them  wherever  he  may  find  them. 
A  carrier  or  other  bailee  can  stand  in  no  better  situation  than  a 
purchaser  who  has  received  them  in  good  faith,  on  a  purchase,  for 
their  full  value. 

A  larceny  has  been  defined  as  "the  felonious  taking  the  property 
of  another,  without  his  consent  and  against  his  will,  with  intent  to 
convert  it  to  the  use  of  the  taker  "  (Hammond's  Case,  2  Leach,  1089), 
or  "  the  wrongful  or  fraudulent  taking  or  carrying  away  by  any  per- 
son of  the  personal  goods  of  another,  with  a  felonious  intent  to  con- 
vert them  to  his  (the  taker's)  own  use  and  make  them  his  own  prop- 
erty without  the  consent  of  the  owner.  2  East,  P.  C.  553;  2  Kuss. 
on  Crimes,  1;  Mowrey  v.  Walsh,  8  Cow.  238. 

The  fraudulent  and  wrongful  taking  being  proved  with  the  felo- 
nious intent,  the  cuiimo  furandi,  the  only  question  remaining  in  any 
case  is  whether  the  taking  was  with  the  consent  of  the  owner;  for  if 
so,  although  the  consent  was  obtained  by  gross  fraud,  there  is  no 
larceny.  But  the  consent  must  be  to  part  with  the  property,  and 
not  the  naked  possession  for  a  special  purpose.  If  the  owner  does 
not  intend  or  consent  to  part  with  his  property,  then  the  taking  and 
conversion  of  it  with  a  felonious  intent  by  one  having  possession  of 
it,  as  the  property  of  the  owQcr  and  for  a  special  purpose,  is  larceny. 
If  it  appear  that  although  there  is  a  delivery  by  the  owner  in  fact, 
yet  there  is  no  change  of  property  nor  of  legal  possession,  but  the 
legal  possession  still  remains  exclusively  in  the  owner,  larceny  may 


486  CARRIERS   OF   GOODS. 

be  committed  as  if  no  such  delivery  had  been  made.  Mowrey  v. 
Walsh,  supra,  and  cases  cited;  and  2  Russ.  on  Crimes,  22;  Lewis 
V.  Commonwealth,  15  S.  &  E.  93;  Commonwealth  v.  James,  1  Pick. 
375;  Cary  r.  Hotaling,  1  Hill,  311.  The  general  owner  of  personal 
property  holds  the  constructive  possession  and  may  maintain  tres- 
pass, though  the  actual  possession  be  in  another;  and  one  who 
obtains  the  bailment  of  goods,  or  the  possession  for  a  special  pur- 
pose, fraudulently  intending  to  deprive  the  owner  of  his  property, 
may  be  convicted  of  larceny.  But  if  the  owner  intends  to  part  with 
the  property  and  delivers  the  possession,  there  can  be  no  larceny, 
although  fraudulent  means  have  been  used  to  induce  him  to  part 
with  the  goods.  The  delivery  of  the  receipt  to  Careras  was  to 
enable  him  to  examine  the  goods  before  paying  for  them,  and  for  no 
other  purpose;  and  with  the  consent  of  the  plaintiff  he  had  access 
to  and  possession  of  the  goods  for  this  special  purpose.  The  sale 
of  the  goods  was  for  cash,  to  be  paid  on  delivery;  the  condition  was 
never  waived,  and  there  was  no  absolute  delivery  of  the  goods  or  of 
the  receipt  for  them  with  intent  to  part  with  the  property,  except 
upon  the  payment  of  the  purchase  price.  Had  the  ship-owner 
received  from  Careras  the  original  receipt  or  bill  of  lading  for  the 
goods,  and  dealt  with  him  on  the  faith  of  it,  as  evidence  of  owner- 
ship, a  different  question  miglit  have  arisen.  But  Careras  had 
availed  himself  of  that  document  to  possess  himself  of  the  property, 
which  he  took  and  removed  from  its  place  of  deposit  to  the  ship 
of  the  defendant's  testator.  Careras  had  the  naked  possessioji  of 
stolen  property,  and  the  ship-owner  was  not  misled  or  induced  to 
receive  it  by  the  production  of  any  other  evidence  of  ownership. 
Neither  did  any  question  arise  upon  the  trial  as  to  the  effect,  upon 
the  right  of  the  plaintiff  to  demand  an  immediate  delivery,  of  the 
fact  that  the  goods  were  stored  in  the  hold  of  the  vessel  under  other 
goods,  and  that  a  breaking  up  of  the  cargo  would  cause  delay  and 
expense,  and  that  the  officers  of  the  vessel  offered  to  deliver  the 
goods  to  the  owner  on  the  return  of  the  ship  from  Havana. 

There  was  no  conflict  of  evidence,  nor  any  question  tc»  submit,  as 
to  the  felonious  taking  of  the  goods,  to  the  jury. 

The  jilaiiitiff  ])i-iii,L,^  clearly  entitled  to  a  verdict  U])Oii  the  l^mquiuI 
that  the  goods  had  been  feloniously  stolen  and  taken  from  liim,  Ihe 
other  questions  made  were  wholly  immaterial.  The  actual  delivery 
of  a  bill  of  lading  to  the  shipper  by  the  testator  would  liave  given 
him  no  better  right  to  retain  the  goods  for  liis  indemnity  tlian  a 
purchaser  in  good  faith  and  for  value  would  have  done.  Neither 
could  acquire  any  right  to  withhold  stolen  property  from  the  plaintiff, 
the  rightful  owner. 

Tljf  goods  liaving  been  stolen  there  was  no  question  of  negligence 
or  cHtfjpjH'l  in  the  case.  A  party  who.se  horse  is  stolen  may  ])urs\ii' 
and  reclaim  hi.s  property,  although  ho  has  negligently  left  his  stable 
unlocked. 


carrier's  compensation.  487 

The  question  of  estoppel  would  have  arisen  if  the  ship-owner  had 
had  knowledge  of,  and  acted  on,  the  faith  of  the  original  shipping 
receipt  delivered  to  Careras. 

The  delivery  of  the  goods  for  the  purpose  named,  although  it 
enabled  Careras  to  perpetrate  a  fraud  upon  the  defendant's  testator, 
did  not  divest  the  plaintiff  of  his  title  or  estop  him  from  reclaiming 
them  wherever  found. 

The  judgment  must  be  affirmed. 


4S3  CARKIEKS   OF    PASSENGERS. 


II.     CARRIERS   OF   PASSENGERS. 

1.    AVllo   DEEMED. 

BiiYCE   V.    AXDEESON. 
2  Pet.  (U.  S.)  150.     1829. 

Writ  of  error  to  the  Circuit  Court  of  Kentuck3\ 

The  ease  was  submitted  to  the  court,  on  the  part  of  the  counsel 
for  tlie  plaintitf  in  error,  'Mv.  Eowan,  upon  the  following  brief. 

This  was  an  action  in  the  Court  below  against  defendants  in  error, 
owners  of  the  steamboat  "  Washiii'.;t'iii.'tn  recover  from  tlu-in  the 
value  of  four  slaves,  tlie  ]irn|.ertv  oi  the  iilaiiitift,  who,  he  alleged^ 
were  delivered  to  tlie  cc^mmandauts  of  saiil  l)oat,  to  be  carried  there; 
on,  and  \vlio,  he  alleged,  were  drowneiL  by  the  carelessness,  negli- 
gence, neglect  or  mismanagement  of  the  captain  and  commandants 
oi  the  said  steamboat. 

[The  evidence  as  set  out  in  the  report  is  omitted.  The  facts  are 
sufficiently  stated  in  the  opinion.] 

Upon  this  evidence  the  plaintiff  moved  the  court  to  instruct  the 

jury, 

1.  That  if  they  find,  from  the  evidence,  that  the  defendants  were 
owners  of  the  steamboat,  and  by  themselves,  their  officer,  or  ser- 
vants of  the  boat,  did  actually  receive  into  their  yawl  the  negroes 
of  the  plaintiff,  to  be  carried  from  shore  on  board  the  steandioat, 
they  are  responsible  for  neglect  and  imprudent  management,  not- 
withstanding no  reward,  or  hire,  or  freight,  or  wages,  were  to  have 
been  jjaid  by  Boyce  to  defendants. 

2.  Tliat  if  they  find  from  the  evidence  that  the  steamboat "  Wash- 
ington "  was  owned  by  defen<lants.  and  used  by  them,  on  the  river, 
a.s  a  common  carrier  for  wages  and  freight,  and  that  the  slaves  of 
plaintiff  were  actually  received  by  the  agents  and  servants  of  the 
defendants,  on  l)oard  of  the  yawl,  of  and  belonging  to  the  defendants 
siH  a  tender  of  tiie  steamboat,  to  be  carried  from  the  land,  and  ]iut 
on  board  the  steamboat,  to  be  therein  carried  and  transported,  that 
the  defendants  were  l)ound  to  tlie  most  skilful  and  careful  manage- 
ment; and  if  the  slaves  were  drowned  in  consequence  of  any  omis- 
Hion  of  Buch  skilful  and  careful  management  l)y  the  agents  and 
servants  in  tlie  conduct  and  navigation  (»f  the  boat  and  tender.  th<j 
defondants  are  answerable  to  the  jdaintiffs  for  tlie  v.ilue  of  the 
slaves. 


WHO   DEEMED.  489 

3.  That  if  the  jury  believe  the  evidence  in  this  case,  the  defend- 
ants woukl  have  had  a  legal  right  to  demand  a  reasonable  compensa- 
tion for  their  undertaking  to  transport  said  slaves  on  board  their 
boat;  and  their  afterwards  waiving,  or  declining  that  right,  from 
motives  of  humanity,  or  any  other  motive,  does  not  change  or 
diminish  their  legal  responsibility  as  common  carriers  for  hire  or 
reward. 

The  defendants  moved  the  court  "  to  instruct  the  jury  that  if  they 
find  from  the  evidence  that  the  slaves  in  controversy  were  taken  on 
board  of  the  yawl  at  the  instance  and  in  pursuance  of  the  request 
of  the  captain  of  the  '  Teche, '  from  motives  of  humanity  and  cour- 
tesy alone,  that  the  defendants  are  not  liable,  unless  they  shall  be 
of  opinion  that  the  slaves  were  lost  through  the  gross  neglect  of  the 
captain  of  the  steamboat,  or  the  other  servants  or  agents  of  the 
defendants." 

The  court  gave  the  first  instruction  moved  b}'  the  plaintiff,  with 
this  qualification,  "that  gross  negligence  or  unskilful  conduct  was 
required  to  charge  the  defendants."  The  second  and  third  instruc- 
tion moved  by  the  plaintiff,  the  court  refused  to  give,  and  instructed 
the  jury  "  that  the  doctrine  of  common  carriers  did  not  apply  to  the 
case  of  carrying  intelligent  beings,  such  as  negroes;  but  that  the 
defendants  were  chargeable  for  negligence  or  unskilful  conduct." 
The  court  gave  the  instructions  asked  for  by  the  defendants. 

It  is  believed  and  alleged  that  the  court  erred  in  refusing  to  give 
the  instructions  required  by  plaintiff  and  in  giving  those  required 
by  defendants,  and  especially  in  instructing  the  jury  that  the  doc- 
trine of  common  carriers  did  not  apply  to  the  case. 

Mr.  Chief  Justice  Marshall.  This  was  an  action  brought  in 
the  Court  of  the  United  States,  for  the  seventh  Circuit  and  District 
of  Kentucky,  against  the  defendants,  owners,  &c. 

There  being  no  special  contract  between  the  parties  in  this  case, 
the  principal  question  arises  on  the  opinion  expressed  by  the  court, 
"that  the  doctrine  of  common  carriers  does  not  apply  to  the  case  of 
carrying  intelligent  beings,  such  as  negroes." 

That  doctrine  is,  that  the  carrier  is  responsible  for  every  loss 
which  is  not  produced  by  inevitable  accident.  It  has  been  pressed 
beyond  the  general  principles  which  govern  the  law  of  bailment, 
by  considerations  of  policy.  Can  a  sound  distinction  be  taken 
beweeu  a  human  being  in  whose  person  another  has  an  interest  and 
inanimate  property?  A  slave  has  volition,  and  has  feelings  which 
cannot  be  entirely  disregarded.  These  properties  cannot  be  over- 
looked in  conveying  him  from  place  to  place.  He  cannot  be  stowed 
away  as  a  common  package.  Not  only  does  humanity  forbid  this 
proceeding,  but  it  might  endanger  his  life  or  health.  Consequently 
this  rigorous  mode  of  proceeding  cannot  safely  be  adopted,  unless 
stipulated  for  by  special  contract.  Being  left  at  liberty,  he  may 
escape.     The  carrier  has  not,  and  cannot  have,  the  same  absolute 


490  CAKKIEKS    OF   TASSENGERS. 

control  over  him  that  he  has  over  inanimate  matter.  In  the  nature 
of  things,  and  in  his  character,  he  resembles  a  passenger,  not  a 
paclca>:e  of  t^oods.  It  woukl  seem  reasonable,  therefore,  that  th^ 
'res]»onsi!5iTit3'  of  the  carrier  sliould  be  measured  by  the  _la\v  jvhich 
is  a|)|TrTeirCleto  Tuissen^ers  rather  than  by  that  which  is  applicable 
to  the  carriage  of  common  guods. 

I  There  are  no  slaves  in  England,  but  there  are  persons  in  whose 
service  another  has  a  temporary  interest.  We  believe  that  the 
responsibility  of  a  carrier,  for  injury  which  such  person  may  sus- 
tain, has  never  been  placed  on  the  same  principle  with  his  respon- 
sibility for  a  bale  of  goods.  He  is  undoubtedly  answerable  for  any 
injury  sustained  in  conseciuen"ce  of  his  negligence  or  want  of  skTlT; 
but  we  have  never  understood  that  he  is  responsible  farther. 

The  law  applicable  to  common  earners  is  one  of  great  rigor. 
Though  to  the  extent  to  which  it  has  been  carried,  and  in  the  cases 
to  which  it  has  been  applied,  we  admit  its  necessity  and  its  policy, 
■we  do  not  think  it  ought  to  be  carried  farther,  or  applied  to  new 
cases.  We  think  it  has  not  been  applied  to  living  men,  and  that  it 
ought  not  to  be  applied  to  tliem. 

The  directions  given  by  the  Court  to  the  jury  informed  them  that 
the  defendants  were  responsible  for  negligence  or  unskilful  conduct, 
but  not  otherwise. 

Sir  William  Jones,  in  his  Treatise  on  I'.ailments,  p.  14,  says, 
"When  the  contract  is  reciprocally  beneficial  to  both  parties,  the 
obligation  hangs  in  an  even  balance;  and  there  can  be  no  reason  to 
recede  from  the  standard:  nothing  more,  therefore,  ought  in  that 
case  to  be  required  than  ordinary  diligence,  and  the  bailee  should 
be  responsible  for  no  more  than  ordinary  neglect."  In  another 
place  (p.  144)  the  same  author  says,  "'A  carrier  for  hire  ought,  b}' 
the  rule,  to  be  responsible  only  for  ordinary  neglect;  and  in  the 
time  of  Henry  VIII.  it  appears  to  have  been  generally  holden  that 
a  common  carrier  was  chargeable  in  case  of  a  loss  by  robbery  only 
when  he  had  travelled  by  ways  dangerous  for  robbing,  or  driven  by 
night,  or  at  any  inconvenient  hour." 

This  rule,  as  relates  to  the  conveyance  of  goods,  was  changed  as 
commerce  advanced,  from  motives  of  policy.  But  if  the  court  is 
right  in  supposing  that  the  strict  rule  introduced  for  general  com- 
mercial objects  does  not  apply  to  the  conveyance  of  slaves,  tlie 
ancient  rule  "that  the  carrier  is  liable  only  for  ordinary  neglect" 
still  applies  to  them. 

If  the  slaves  were  taken  on  Itoard  the  yawl  tn  l)e  conveyed  in  the 
steamboat,  solely  in  consequence  of  their  distress  and  from  motives 
of  humanity  alone,  no  reward,  hire,  or  freight  being  to  be  j)aid  for 
their  passage,  as  the  first  ])rayer  of  the  jilaintilT  and  the  prayer  of 
the  defendant  sujfposo,  the  carrier  would  certainly  bo  responsible 
only  in  a  case  of  gross  neglect;  and  the  qualification  annexed  to  this 
construction  was  correct. 


WHO   DEEMED.  491 

We  think  that  in  the  case  stated  for  the  instruction  of  the  Circuit 
Court  the  defendants  were  responsible  for  the  injury  sustained,  only 
in  the  event  of  its  being  caused  by  the  negligence  or  the  unskilful- 
ness  of  the  defendants  or  their  agents,  and  that  there  is  no  error  in 
the  opinion  given. 


SHOEMAKER   v.   KINGSBURT. 

12  Wall.  (U.  S.)  369.     1870. 

Error  to  the  Circuit  Court  for  the  District  of  Kansas. 

Suit  for  damages  for  personal  injuries  happening  on  a  rail  car; 
the  case  being  thus :  — 

In  1867  Shoemaker  and  another  -were  contractors  for  building  the 
Eastern  Division  of  the  Union  Pacific  Railway  in  Kansas;  and  in 
October  of  that  year  they  ran  a  construction  train  over  a  portion 
of  the  road,  carrying  material  for  it.  To  this  tram  was  attached 
what  was  called  a  "caboose  car, "  —  a  car  for  the  accommodation  of 
the  men  connected  with  the  train,  who  had  their  "  sleeping  bunks  " 
in  this  car,  and  who  stored  their  tools  there,  as  also  the  lamps  used 
on  the  cars.  The  road  was  not  yet  delivered  over  to  the  Pacific 
Railway  Company,  and  the  contractors  did  not  wish  to  carry  pas- 
sencers.  Persons,  however,  were  sometimes  carried  on  the  caboose 
car,  and  sometimes  fare  had  been  charged  for  their  passage,  but  not 
always. 

In  tiiis  state  of  things,  one  Kingsbury,  a  sheriff  in  Kansas,  and  a 
deputy  marshal,  wanted  to  make  an  arrest  on  the  line  of  the  road, 
and  he  applied  for  passage  as  far  as  to  a  place  called  Wilson's 
Creek,  asking  the  conductor  to  stop  the  train  there,  in  order  that 
he  might  make  the  arrest.  He  was  accordingly  taken  on  the  train, 
and  the  train  stopped  until  he  had  made  the  arrest. 

A  part  of  the  fare  charged  was  paid  by  Kingsbury  on  the  cars, 
and  the  balance  afterwards.  The  train  ran  from  Ellsworth  to 
Walker's  Creek  in  Kansas.  In  going  towards  Walker's  Creek  the 
train  was  made  up  and  ran  in  the  usual  way  of  making  up  and  run- 
ning railway  trains,  the  engine  being  in  front,  with  the  caboose  and 
flat  cars  attached  in  regular  order.  But  on  the  return  from  Walker's 
Creek,  as  there  was,  as  yet,  no  turntable  on  the  road,  the  usual 
order  for  making  up  such  trains  was  reversed,  and  both  engine  and 
tender  were  backed  over  the  road,  a  distance  of  more  than  fifty 
miles:  the  tender  being  ahead,  the  engine  next,  the  caboose  and 
other  cars  attached,  and  following  in  regular  order.  When  about 
three  miles  from  Ellsworth,  on  this  return  trip,  both  the  engine  and 
tender  were  thrown  from  the  track  and  upset.  At  the  time  this  acci- 
dent occurred,  Kingsbury  was  riding  in  the  caboose  car  with  the 


492  CARRIERS   OF   PASSENGERS. 

conductor  of  the  traiu,  and  either  jumped  out  or  was  thrown  out, 
which  of  the  two  did  not  exactly  appear.  Whichever  of  the  two 
things  was  true,  he  was  hurt,  and  for  the  injuries  which  he  received 
he  brought  the  action  below. 

The  accident  was  occasioned  by  the  engine  running  against  a 
young  ox,  which  leaped  on  to  the  track  about  twenty  feet  in  front 
of  the  advancing  train,  from  grass  or  weeds  five  or  six  feet  high, 
growing  on  the  sides  of  the  road.  The  train  was  running  at  its 
usxial  rate  of  speed.  The  accident  occurred  just  after  dark;  but  it 
was  a  moonlight  night,  and  the  engineer  testified  that  he  could  have 
seen  an  animal  two  hundred  yards  distant  on  the  track;  that  the 
animal  was  only  about  twenty  feet  from  the  engine  when  first  seen. 
He  continued  his  testimony  thus :  — 

"As  soon  as  1  saw  the  animal  I  shut  off  the  steam,  and  seized  the 
lever  to  reverse  the  engine,  and  had  it  about  half  over  when  the 
engine  went  off  the  track.  Something  struck  me  on  the  head  and  I 
did  not  know  anything  more.  I  was  injured.  I  did  what  I  thought 
was  best  to  be  done  to  stop  the  train.  The  whistle  lever  was  in  the 
top  of  the  cab.  I  did  not  whistle  for  brakes.  I  had  no  time  to  do 
so  after  I  saw  the  animal  and  before  the  engine  went  oft'  the  track. 
The  train  could  have  been  stopped  in  about  one  hundred  and  fifty 
yards.  When  danger  appears  the  first  thing  to  be  done  is  to  reverse 
the  engine  and  then  sound  the  whistle  for  brakes.  Both  could  not 
be  done  at  the  same  time.  In  order  to  reverse  and  blow  the  whistle 
two  motions  are  necessary,  — first,  to  cut  off  the  steam,  and  then 
take  hold  of  the  lever  to  throttle  valve  and  move  it  over.  It  takes 
both  hands  to  reverse.  The  whistle  is  sounded  by  a  lever  in  the 
top  of  the  cab.  Brakemen  would  know,  by  shutting  off  steam  and 
reversing,  that  .something  was  the  matter.  It  would  take  about  ten 
seconds  to  do  all  this.  I  did  it  as  quick  as  I  could.  I  could  have 
done  nothing  more  than  I  did  do." 

There  was  no  fence  on  the  sides  of  the  road.  The  plaintiff  had 
been  several  times  before  over  the  road  and  knew  its  condition,  and 
the  manner  in  wliich  the  trains  were  made  up  and  run. 

The  court,  among  other  instructions,  gave  the  following  as  a  fifth 
to  the  jury,  to  which  the  defendants  excepted :  — 

"  When  it  wns  jyroved  that  the  car  was  thuowk  from  the  track, 
and  the  plaintiff  injured,  it  is  incumhent  on  the  defendants  to  prove 
that  the  arjents  and  servants  in  eharrje  of  the  trains  were  persons  of 
competent  skill,  ok  good  iiabit.s,  arid  in  every  resjierf  fjaalifrd  and 
suitably  prepared  for  the  business  in  which  they  were  enyarfed,  and 
that  they  acted  on  this  occasion  with  reasonable  skill,  and  with  the 
utmost  ])rudence  and  caution;  and  if  the  disaster  in  question  was 
d  by  the  least  negligence,  or  want  of  skill  or  prudence  on 
'  ,      ',  then  the  defendants  are  liable  in  this  action." 

'J'here  was  no  evidence  in  tlie  case  in  relation  to  the  skill,  habits, 
or  qualifications  of  the  agents  and  servants  of  the  dcfcmlants,  except 


WHO   DEEMED.  493 

what  arose  from  the  fact  that  the  engineer  had  been  employed  on  a 
railroad  about  four  years,  and  had  been  engineer  for  more  than  two 
years,  and  that  the  fireman  had  been  on  a  railroad  for  about  eighteen 
months. 

Verdict  and  judgment  having  gone  for  the  plaintiff,  the  defendants 
brought  the  case  here  on  error. 

Mr.  Justice  Field.  From  the  whole  evidence  in  this  case  it  is 
plain  that  the  defendants  were  not  common  carriers  of  passengers  at 
the  time  the  accident  occurred,  which  has  led  to  the  present  action. 
They  were  merely  contractors  for  building  the  Eastern  Division  of 
the  Union  Pacific  Railway,  and  were  running  a  construction  train 
to  transport  material  for  the  road.  The  entire  train  consisted, 
besides  the  engine  and  its  tender,  of  cars  for  such  material,  and 
what  is  called  in  the  testimony  a  -'caboose  car."  This  latter  car 
was  intended  solely  for  the  accommodation  of  the  men  connected 
with  the  train ;  it  contained  their  bunks  and  mattresses;  they  slept 
in  it,  and  deposited  in  it  the  lamps  of  the  car,  and  the  tools  they 
used.  It  was  not  adapted  for  passengers,  and,  according  to  the  tes- 
timony of  the  conductor,  the  defendants  did  not  wish  to  carry  pas- 
sengers, although  when  persons  got  on  to  ride  the  defendants  did 
not  put  them  off,  and  sometimes,  though  not  always,  fare  was 
charged  for  their  carriage. 

The  plaintiff,  who  was  sheriff  of  a  county  in  Kansas,  and  deputy 
marshal  of  the  district,  desired  to  arrest  a  person  on  the  line  of  the 
road,  and,  to  enable  him  to  accomplish  this  purpose,  he  applied  to 
the  conductor  for  passage  on  the  train  as  far  as  Wilson's  Creek,  and 
requested  that  the  train  would  stop  there  until  the  arrest  could  be 
made.  His  wishes  were  granted  in  both  respects,  and  for  the  ser- 
vices rendered  he  paid  at  the  time  a  portion  of  the  fare  charged,  and 
the  balance  subsequently. 

In  the  rendition  of  these  services  for  the  plaintiff  the  defendants 
were  simply  private  carriers  for  hire.  As  such  carriers,  having  only 
a  construction  train,  they  were  not  under  the  same  obligations  and 
responsibilities  which  attach  to  common  carriers  of  passengers  by 
railway.  The  latter  undertake,  for  hire,  to  carry  all  persons  indif- 
ferently who  apply  for  passage :  and  the  law,  for  the  protection  of 
travellers,  subjects  such  carriers  to  a  very  strict  responsibility.  It 
imposes  upon  them  the  duty  of  providing  for  the  safe  conveyance  of 
passengers,  so  far  as  that  is  practicable  by  the  exercise  of  human 
care  and  foresight.  They  are  bound  to  see  that  the  road  is  in  good 
order;  that  the  engines  are  properly  constructed  and  furnished;  thaT 
the  cars  are  strong,  and  fitted  for  the  accommodation  ot  passengers'", 
and  that  the  running  gear  is,  so  far  as  the  closest  scrutiny  can' 
detect,  perfect  in  its  character.. 

If  any  injury  results  from  a  defect  in  any  of  these  particulars  they 
are  liable. 

They  are  also  bound  to  provide  careful  and  skilful  servants,  com- 


494  CAJRRIERS   OF   PASSENGERS. 

petent  in  every  respect  for  the  positions  to  which  they  are  assio^ned 
iu  the~iuanagemeiit  ami  ruiming  of  tlie  cars;  and  thoy  are  resiKni- 
sible  for  the  cousequeuces  of  any  negligence  or  want  of  skill  on  the 
piirt  of  such  st-rvauts. 

They  are  also  bound  to  take  all  necessary  precautions  to  keep 
obstructions  from  the  track  of  the  road;  and  although  it  may  not  be 
obligatory  upon  them,  iu  the  absence  of  legislative  enactment,  to 
fence  in  the  road  so  as  to  exclude  cattle,  it  is  incumbent  upon  them 
to  use  all  practical  means  to  prevent  the  possibility  of  obstruction 
from  the  straying  of  cattle  on  to  tlie  track  as  well  as  from  any  other 
cause.  As  said  by  the  Supreme  Court  of  Pennsylvania,  in  speaking 
of  the  duty  _of  railway  companies  in  this  particular :  ^  "  Having 
undertaken  to  carry  safely,  and  holding  themselves  out  to  the  world 
as  able  to  do  so,  they  are  not  to  suffer  cows  to  endanger  the  life  of 
a  passenger  any  more  than  a  defective  rail  or  axle.  Whether  they 
maintain  an  armed  police  at  cross-roads,  as  is  done  by  similar  com- 
l)anies  in  Europe,  or  fence,  or  place  cattle-guards  within  the  bed  of 
their  road,  or  by  any  other  contrivance  exclude  this  risk,  is  for 
themselves  to  consider  and  determine.  We  do  not  say  they  are 
bound  to  do  the  one  or  the  other,  but  if,  by  some  means,  they  do  not 
exclude  the  risk,  they  are  bound  to  respond  in  damages  when  injury 
accrues." 

It  is  evident  tliat  the  defendants  in  this  case  were  not  subject  to 
any  such  stringent  obligations  and  responsibilities  as  are  here  men- 
tioned. They  did  not  hold  themselves  out  as  capable  of  carrying 
passengers  safely;  they  had  no  arrangements  for  passenger  service, 
and  they  were  not  required  to  make  provisions  for  the  protection  of 
tlie  road  such  as  are  usually  adopted  and  exacted  of  railroad  com- 
l)anies.  They  did  not  own  the  road,  and  had  no  interest  in  it 
beyond  its  construction.  It  was  no  part  of  their  duty  to  fence  it 
in  or  to  cut  away  the  bushes  or  weeds  growing  on  its  sides. 

The  plaintiff  knew  its  condition  and  tlie  relation  of  the  defendants 
to  it  when  he  applied  for  ])assage.  He  had  been  previously  over  it 
several  times,  and  was  well  aware  that  there  was  no  turntable  on  a 
portion  of  the  route;  a  fact,  which  compelled  the  defendants  to 
reverse  the  engine  on  the  return  of  the  train  from  AValker's  Creek. 
He,  therefore,  took  upon  himself  the  risks  incident  to  the  mode  of 
conveyance  used  l»y  the  defendants  when  he  entered  their  cars.  All 
that  he  could  exact  from  them,  under  these  circumstances,  was  the 
exercise  of  such  care  and  skill  in  the  management  and  running  of 
the  train  as  prudent  and  cautious  men,  exjierienced  in  that  business, 
are  accustomed  to  use  under  similar  circumstances.  Sufh  care 
implies  a  watchful  iittention  to  the  working  of  the  engine,  the  move- 
ment of  the  cars  and  their  running  gear,  and  a  constant  and  vigilant 
lookout  for  the  condition  of  the  road  in  advance  of  the  train.  U 
such  care  and  skill  were  used  by  the  defendants,  they  discharged 

'  Sullivan  V.  Pcnnsylv/inia  &  Rending  R.  Co.,  30  Pnin.  St,  234. 


WHO    DEEMED.  495 

their  entire  duty  to  the  plaintiff,  and  if  an  accident,  notwithstand-  ' 
ing,  occurred,  by  which  he  was  injured,  they  were  not  liable.     They   | 
were  not  insurers  of  his  safety,  nor  responsible  for  the  consequences  (' 
of  unavoidable  accident. 

The  question  should  have  been  put  to  the  jury  whether  the  defend- 
ants did,  in  fact,  exercise  such  care  and  skill  in  the  management 
and  running  of  the  train  at  the  time  the  accident  occurred.  They 
were  not  responsible  to  the  plaintiff  unless  the  accident  was  directly 
attributable  to  their  negligence  or  unskilfulness  in  that  particular. 

The  evidence  in  the  case  shoAvs  that  the  accident  was  occasioned 
by  the  tender  and  engine  running  against  a  steer.  The  train  was 
proceeding  at  its  usual  rate  of  speed  when  the  steer  suddenly,  from 
a  mass  of  high  weeds  or  grass  growing  on  the  sides  of  the  road, 
leaped  upon  the  track  directly  in  front  of  the  advancing  train,  at  a 
distance  from  it  of  about  twenty  feet.  This  distance  was  so  short, 
and  the  movement  of  the  animal  was  so  sudden,  that  it  was  impos- 
sible to  arrest  the  train,  and  a  collision  followed  which  threw  the 
engine  and  tender  from  the  track.  The  plaintiff,  on  the  happening 
of  the  collision,  either  leaped  from  the  "  caboose  car,"  in  which  he 
was  at  the  time  sitting,  or  was  thrown  from  it,  it  is  immaterial 
which,  and  was  injured. 

The  fifth  instruction  given  by  the  court  turned  the  attention  of 
the  jury  from  the  simple  question  at  issue  for  their  determination, 
and  directed  it  to  the  skill,  habits,  and  attainments  for  their  busi- 
ness of  the  agents  and  servants  of  the  defendants,  as  well  as  to  their 
conduct  on  the  occasion  of  the  accident.  It  held  proof  that  the 
agents  and  servants  were  possessed  of  competent  skill,  of  good 
habits,  and  in  every  respect  qualified  and  suitably  prepared  for  the 
business  in  which  they  were  engaged,  as  essential  as  proof  that  they 
acted  on  the  occasion  with  skill,  prudence,  and  caution.  And  it 
made  the  occurrence  of  the  accident  presumptive  evidence  that  they 
were  destitute  of  such  skill,  habits,  and  qualifications. 

We  are  of  opinion  that  the  court  erred  in  this  instruction,  and 
that  it  misled  the  jury.  On  this  ground  the  judgment  of  the  court 
below  must  be 

Reversed,  and  the  cause  remanded  for  a  new  trial. 


HOAE  V.    MAINE   CENTEAL   E.    CO. 

70  ]\Iaine,  65.     1879. 

Appleton,  C.  J.  The  material  and  substantive  allegations  in  the 
several  counts  in  the  plaintiff's  writ  are  that  the  defendants  are 
common  carriers  of  passengers  between  Waterville  and  West  Water- 


49o  CARRIERS   OF   PASSENGERS. 

ville;  that  as  such  carriers  they  are  bound  to  carryall  passengers 
and  persons  lawfully  on  their  road  carefully  and  safely  over  the 
same;  that  the  plaintiffs  intestate,  being  invited  by  one  Potter,  a 
foreman  of  a  sectiuu  in  their  eui]iloy  and  intrusted  by  them  with 
the  care  and  control  of  one  of  their  hand-cars,  to  ride  with  Iiim  on 
said  hand-car  from  Waterville  to  West  Waterville,  acceitted  the 
invitation;  that  the  ]ilaintill''s  intestate,  wliile  ridiu-z.  was  run  oyer 
by  one  of  the  tlefendants'  engines,  to  which  a  paymaster's  ear  was 
attached y  and  injured  so  that  he  died,  and  that  this  was  through  the 
negligence  of  the  defendants  and  their  servants,  the  deceased  being 
in  the  exercise  of  due  care. 

To  each  count  of  the  declaration  the  defendants  filed  a  general 
demurrer. 

I.  The  liability  of  a  railroad  company  differs  as  to  their  duty  to 
their  servants  and  to  passengers.  They  are  liable  to  servants,  for 
injuries  resulting  from  want  of  due  care  in  the  selection  of  fellow- 
servants,  but  if  duly  selected,  they  do  not  guarantee  against  their 
negligence.  Blake  v.  M.  C.  K.  R.  Co.,  ante.  Xot  so  as  to  passen- 
gers, to  whom  they  are  responsible  for  injuries  arising  from  their 
negligence  or  incapacity,  irrespective  of  the  question  of  more  or  less 
care  in  their  selection.  It  is  obvious  that  there  is  no  defect  in  the 
declaration  so  far  as  it  relates  to  the  negligence  of  the  defendants, 
if  they  are  to  be  deemed  common  carriers  by  hand-cars. 

II.  The  plaintiff's  intestate  was  to  be  carried  gratuitously'.  But 
that  does  not  ]dace  him  in  a  different  position,  so  far  as  relates  jo 
his  right  to  protection  from  neglect,  from  a  pay  ]^assenger,  —  if  he 
IS  to  be  regarded  as  aTpassengerJio  be  carried  by  the  defendants. 
Phil.  .V-  Kead.  "R.  K.  Co.  v.  Derbj^TTHTAv.  (U.  S.)  4G8.  Wilton 
V.  Middlesex  R.  R.  Co.,  107  Mass.  loS  [544].     Whar.  Xeg.,  §  355. 

III.  The  plaintiff  places  her  right  to  recover  upon  a  neglect  by 
the  defendants  of  their  duties  to  the  intestate  as  common  carriers. 
To  impose  upon  the  defendants  the  duties  and  responsibilities  of 
common  carriers,  they  must  be  sliown  to  bo  such.  The  grave  and 
important  question,  then,  is  whether  the  defendants,,  tliouji^h  copi - 
mon  carriers  of  passengers  along  their  road  and  in  tlieir  ears   ior 


tliat  i)urpose,  are  common  carriers_of  pg^fsenj^er.^  by  tlieir  hand-oars 
)y_th(dr_secti()n  iiu'ii.      Were  tlic  deft-ndauts  diartered  as  eom- 


mou  carriers  save  by  tlieir  cars  for  jiasscngers?  Have  they  l)y  tlieir 
acts  or  conduct  held  out  to  the  public,  or  autliorized  their  agents  to 
hold  out  to  the  public,  that  they  are  common  carriers  by  their  liand- 
cars?  If  they  have  not  been  chartered,  and  have  not  in  any  way  heM 
themselves  out,  as  common  carriers  by  liand-cars,  tlien  the  duties 
and  obligations  resting  upon  them  as  carriers  have  not  arisen. 

If  tlie  defendants  were  common  carriers  in  relation  to  the  jilaiii- 
tiff's  intestate,  they  would  be  bound  to  carry  all  who  should  aiiply. 
Were,  then,  the  defendants  bound  to  carry  on  their  hand-cars  any 
one  asking  to  be  so  conveyed?     Assuredly  not. 


WHO    DEEMED.  497 

111  Graham  v.  Toronto,  Grey  &  Bruce  Railway  Co.,  23  Up.  Can. 
(C.  P.)  514,  the  defendants  agreed,  with  a  contractor  for  the  con- 
struction of  their  railway,  to  furnish  a  construction  train  for  bal- 
lasting and  laying  the  track  for  a  portion  of  their  road  then  under 
construction;  the  defendants  to  provide  the  conductor,  engineer,  and 
fireman ;  the  contractor  furnishing  the  brakemen.  On  October  31, 
1872,  after  work  was  over  for  the  day  and  the  train  was  returning  to 
Owen  Sound,  where  the  plaintiff,  one  of  the  contractor's  workmen, 
lived,  the  plaintiff,  with  the  permission  of  the  conductor  but  with- 
out the  authority  of  the  defendants,  got  on.  Through  the  negli- 
gence of  the  person  in  charge  of  the  train  an  accident  happened, 
and  the  plaintiff  was  injured.  "The  fact,"  remarks  Hagarty,  C.  J., 
*'that  the  defendant's  engine-driver  or  conductor  allowed  him  to  get 
on  the  platform,  does  not  alter  my  view  of  the  case. 

"  I  cannot  distinguish  it  from  the  case  of  a  cart  sent  by  its  owner 
under  his  servant's  care  to  haul  bricks  or  lumber  for  a  house  he  is 
building.  A  workman,  either  with  the  driver's  assent  or  without 
any  objections  from  him,  gets  upon  the  cart.  It  breaks  down,  or 
by  careless  driving  runs  against  another  vehicle,  or  a  lamp  post,  and 
the  workman  is  injured.  I  cannot  understand  by  what  process  of 
reasoning  the  owner  can  in  such  case  be  held  to  incur  any  liability 
to  the  person  injured.  Nor  in  my  opinion,  would  the  fact  that  the 
owner  was  aware  that  the  driver  of  his  cart  often  let  a  friend  or  per- 
son doing  work  at  his  house  drive  in  his  cart  make  any  difference. 
...  It  could  never  be,  I  think,  in  the  reasonable  expectation  of 
these  defendants  that  they  were  incurring  any  liability  as  carriers 
of  passengers,  or  that  they  should  provide  against  contingencies  that 
might  affect  them  in  that  character." 

A  similar  question  arose  in  Sheerman  v.  Toronto,  Grey  &  Bruce 
Railway  Co.,  34  Up.  Can.  (Q.  B.)  451,  where  one  of  the  workmen 
was  being  carried,  without  reward,  on  a  gravel  train,  and  was  injured 
so  that  he  died,  it  was  held  that  the  deceased  was  not  lawfully  on 
the  cars  with  the  consent  of  the  defendants,  and  a  nonsuit  was 
directed.  "The  workmen,"  observes  Wilson,  J.,  "were  not  law- 
fully on  the  cars.  They  were  not  passengers  being  carried  by  the 
defendants.  They  were  acting  on  their  own  risk,  not  at  the  risk 
of  the  defendants,  and  however  unfortunate  the  disaster  may  have 
been,  it  is  only  right  the  legal  responsibility  should  fall  on  those 
who  ought  to  bear  it,  and  not  upon  those  upon  whom  it  does  not 
rest."  In  this  case  "it  appeared  that  it  was  not  necessary  the 
defendants  should  carry  the  men  to  and  from  their  work,  and  that 
they  never  agreed  to  do  more  than  to  provide  cars  for  carrying  bal- 
lasting and  materials  for  track  laying." 

The  defendants  not  being  common  carriers,  so  far  as  relates  to 
their  liability  to  the  plaintiff's  intestate,  the  declaration  not  disclos- 
ing facts  which  show  such  liability  must  be  adjudged  bad.  Eaton 
V.  Delaware,  L.  &  W.  R.  R.  Co.,  57  X.  Y.  383.     Union  Pacif.  R. 

32 


498  CARKIEKS   OF   PASSENGERS. 

R.  Co.  f.  Nichols,  S  Kan.  505.  In  Dunu  r.  Grand  Trunk  E.  E.  Co., 
58  Maine,  187,  the  plaintiff  was  riding;  in  a  saloon  car  attached  to 
a  freight  train,  and  paid  the  customary  fare  for  conveyance  in  a 
passenger  car. 

IV.  A  master  is  bound  b}'  the  acts  of  his  servant  in  the  course 
of  his  emplo3'ment,  but  not  by  those  obviously  and  utterly  outside 
of  the  scope  of  such  employment.  If  not  common  carriers,  a  section 
foreman  with  his  hand-car  has  no  right  to  impose  upon  the  defend- 
ants the  onerous  responsibilities  arising  from  that  relation.  He 
lias  no  right  to  accept  passengers  for  transportation  and  bind  the 
defendants  for  their  safe  carriage,  and  every  man  may  safely  be 
presumed  to  know  thus  much. 

If  the  risk  is  much  greater  by  this  mode  of  conveyance,  the  plain- 
tiff's intestate  by  adopting  it  assumed  the  extra  risks  arising  there- 
from, and  must  be  held  to  abide  the  unfortunate  consequences. 

yp  one  becomes  a  passenger  exce])t  bv  the  consent,  express  or 
impl it'll,  of  the  carrier.  There  is  no  allegation  of  exi)ress  consent 
by  the  defendants,  nor  of  anything  from  which  consent  can  be 
implied  that  the  plaintiff's  intestate  should  be  carried  at  their  risk 
by  this  unusual  mode  of  conveyance. 

Declaration  hud. 


HOUSTON   AND   TEXAS   CENTRAL   R.    CO.    r.    MOORE. 
49  Tex.  31.     1878. 

August  10,  1872,  William  C.  Moore,  husband  of  ^lary  A.  ]\Ioore, 
was  on  a  freight  train  running  on  the  Houston  and  Texas  Central 
Railway  between  Hempstead  and  Houston.  At  a  point  about  two 
miles  and  a  half  west  of  Hockley  station  the  train  ran  otf  the  track, 
and  Moore  received  injuries,  from  the  effects  of  which  he  died. 

March  3,  1873,  Mary  A.  Moore  brought  suit  against  the  railway 
company,  in  her  own  right,  and  as  motlier  and  natural  guardian  of 
William  J.  Moore,  aged  about  thirteen  years,  and  iVIattie  F.  Moore, 
aged  about  eight  years.  The  plaintiff  alleged  that  her  husband  came 
to  his  death  by  the  negligence  of  the  defendants,  its  agents  and  ser- 
vants, under  circumstances  such  as  to  make  the  defendant  liable, 
and  claimed  damages  to  the  amount  of  fifty  thousand  dollars. 

The  defendant  excepted  to  the  petition,  because  the  pro])er  parties 
were  not  shown  to  have  been  made;  pleaded  the  general  issue;  and 
specially  alleged  in  defence  that  tlie  car  or  train  on  which  tlie 
dfoeiiHed  was,  at  the  time  he  received  the  injury,  was  a  freight 
train,  and  tliat  he  was  on  said  train  without  the  consent  of  the 
defendant,  and  knowingly  in  violation  of  defendant's  orders  and 
inatnictions;  that  the  injuries  were  the  result  of  the  gross  negli- 


WHO   DEEMED.  499 

gence  and  carelessness  of  the  deceased,  and  not  owing  to  the  negli- 
gence or  carelessness  of  the  defendant,  its  servants,  or  agents. 

The  jury  returned  a  verdict  for  plaintiff  for  five  thousand  dollars, 
upon  which  judgment  was  rendered. 

Writ  of  error  by  the  defendant. 

MooRE,  Associate  Justice 

It  appears,  on  the  face  of  appellee's  petition,  that  the  deceased, 
when  he  received  the  injuries  which  caused  his  death,  was  on  a 
freight  train.  The  evidence  shows  that  there  was  no  person  on  said 
train  but  the  employees  of  appellant,  except  the  deceased,  who  had 
been  an  engine-driver,  running  a  train  on  appellant's  road  for  a  year 
or  two,  vmtil  about  a  mouth  or  six  weeks  previous  to  his  death,  and 
well  knew  that  passengers  were  not  allowed  to  travel  on  freight 
trains  on  appellant's  road;  that  the  officers  in  charge  of  such  trains 
were  forbidden  to  allow  parties  to  ride  upon  them  without  a  special 
pass  from  the  general  superintendent  of  the  road;  that  no  such  pass 
could  be  gotten  without  a  release  of  appellant  from  damages  in  case 
of  accident;  that  this  was  the  condition  upon  which  permits  to  ride 
upon  freight  trains  were  given,  because  of  the  greater  risk  of  acci- 
dents to  passengers  on  freight  trains  than  on  passenger  trains,  and 
because  the  company  would  not  assume  such  risks  on  behalf  of  per- 
sons desiring  to  travel  in  this  unusual  and  extra-hazardous  manner. 

On  the  other  hand,  it  cannot  be  doubted  that  deceased  was  riding 
on  the  train  with  the  knowledge  and  consent  of  the  conductor.  But 
whether  he  paid  fare,  or  had  a  pass  or  permit  to  travel  on  a  freight 
train,  is  not  shown. 

Under  this  state  of  case,  the  question  to  be  determined  is  whether 
appellant  had  assumed  the  risk  of  a  common  carrier  of  passengers  in 
respect  to  the  deceased,  while  thus  riding  upon  its  freight  train;  or, 
in  other  words,  whether  deceased  was,  in  contemplation  of  law,  a 
passenger  on  appellant's  train;  or  if  not  such  passenger,  strictly 
speaking,  whether  the  assent  of  the  conductor  to  his  getting  upon 
the  train  gave  him  the  right  to  ride  upon  it,  and  render  appellant 
responsible  for  any  injury  done  him  while  thus  on  the  train,  to  which 
he  in  no  manner  contributed. 

Appellant,  as  a  railway  company,  is  a  common  carrier  of  both 
freight  and  passengers;  but  has,  unquestionably,  the  right  to  make 
reasonable  regulations  for  conducting  its  business;  and  parties  deal- 
ing with  it  must  conform  to  such  regulations.  That  a  regulation  of 
a  railway  company,  that  freight  and  passengers  will  be  carried  on 
its  road  in  separate  trains,  is  a  reasonable  regulation,  can  hardly  be 
doubted  by  any  one.  Indeed,  it  seems  a  highly  salutary  regulation 
for  the  public  as  well  as  the  company.  Xor  can  it  be  controverted, 
when  a  railroad  company  makes  other  suitable  provision  for  pas- 
senger travel,  that  no  one  has  the  right  to  demand  that  he  shall  be 
allowed  to  ride  in  its  trains  devoted  exclusively  to  the  carrying  of 


500  CARRIERS   OF   PASSENGERS. 

freight.  If  a  party,  in  violation  of  sucli  regulation,  and  without  the 
consent  of  the  company,  forces  himself  into  one  of  its  freight  trains, 
it  surely  cannot  be  supposed  that  the  compan}-  could  be  held  respon- 
sible to  him  in  its  character  as  a  carrier  of  passengers ;  or  that  the 
party  who  should  thus  contribute  to  the  injury  which  he  might  sus- 
tain while  thus  wrongfully  in  the  train,  may  maintain  an  action 
against  the  company  for  such  injury.  Unless  he  could,  an  action 
cannot  be  maintained  under  the  statute  by  his  heirs,  representa- 
tives, and  relatives,  in  case  of  his  death. 

It  may  be  true,  where  a  railroad  company  habitually  permits  pas- 
sengers to  travel  on  its  freight  trains,  notwithstanding  it  may 
by  regulation  prohibit  it,  that  the  company  will  incur  the  same 
responsibility  to  such  passengers  as  if  they  were  on  the  regular 
passenger  cars.  But  when  it  is  shown  that  the  regulations  of  the 
company  absolutely  forbid  passengers  riding  on  freight  trains,  and 
where  there  are  no  cars  attached  to  such  trains  except  those  ordi- 
narily accompanying  trains  exclusively  for  freight,  or  such  as,  by 
their  appearance  and  manner  in  which  they  are  fitted  up,  could  not 
be  properly  regarded  as  inviting  passengers  into  the  train,  the  bur- 
den of  proving  that  the  party  injured  was  justified  in  going  upon 
such  train  as  a  passenger,  properly  devolves  ujjon  those  who  sue  for 
damages  resulting  from  injuries  sustained  by  him  while  on  such 
train.  Do  the  facts  in  this  case  show  that  appellant  permitted  pas- 
sengers to  travel  on  its  freight  trains,  notwithstanding  its  regulation 
prohibiting  it,  to  an  extent  or  in  a  manner  to  warrant  the  deceased 
in  supposing  that  he  was  authorized  to  get  upon  its  freight  train  as 
a  passenger?     Certainly  they  do  not. 

If,  then,  it  can  be  inferred  that  the  deceased  was  properly  on  the 
train,  it  must  be  upon  the  supposition  that  he  had  a  special  permit; 
or  that  the  conductor  of  tlie  train  was  authorized  to  annul  or  waive 
the  regulation  of  the  company,  i)roliibiting  passengers  from  travel- 
ling in  freight  trains.  But  the  evidence  shows  that  the  conductor 
had  no  such  authority,  and  that  the  deceased  must  have  known  that 
he  had  not. 

This  is  not  the  case  of  an  ordinary  traveller,  unacquainted  with 
the  regulations  of  tlie  railroad,  or  if  acquainted  with  them  at  all, 
only  in  a  general  way;  or  of  one  who  is  uninformed  as  to  tlie  powers 
and  functions  of  the  officer  in  charge  of  the  train,  and  who,  if  he 
knew  that  passengers  had  been  sometimes  carried  by  such  train, 
might  suppose  tliat  the  officer  in  charge  of  it  had  authority  to  relax 
or  set  aside  the  rule  in  special  cases;  which  seems  to  be  the  extent 
to  which  the  case  of  Dunn  v.  Grand  Trunk  Kailway,  58  Me.,  187, 
relied  upon  by  appellee,  goes,  — but  which,  even  on  its  facts,  seems 
to  \xi  greatly  questioned  by  Judge  Kedfield,  the  distinguished  com- 
mentator on  railroad  law  Hiedf.  Am.  Railroad  Cases,  100);  and  to 
have  Ijcen  denied  by  the  New  York  Commissioners  of  Ai)i)eal,  in 
the  case  of  Eaton  r.  The  Delaware,  &c.  [.'7  N.  Y.  .3S2].     Here,  the 


PUBLIC   CALLING.  501 

deceased,  who,  only  a  short  time  previously  to  his  going  on  the 
train,  had  been  in  the  employment  of  appellant,  must  have  known 
that  the  conductor  was  forbidden  to  allow  him  to  travel  as  a 
passenger  upon  the  train. 

It  cannot,  in  view  of  all  the  facts  of  this  case,  be  said  that  appel- 
lant had  undertaken  or  contracted  with  the  deceased  to  carry  him  as 
a  passenger  over  its  road,  or  that  we  are  warranted  in  saying  the 
p7'ima  facie  presumption  that  the  deceased  was  wrongfully  upon 
appellant's  train,  when  he  received  the  injuries  which  caused  his 
death,  has  been  rebutted;  and,  if  death  had  not  ensued,  that  he 
could  have  maintained  an  action  against  appellant  on  account  of  the 
injuries  which  he  received  by  the  wreck  of  the  train.  The  judg- 
ment must  therefore  be  reversed  and  the  cause  remanded.  And  it 
is  so  decreed. 


2.   PUBLIC  CALLING. 

BENNETT   V.    DUTTON. 
10  N.  H.  481.     1839. 

The  declaration  alleged  that  the  defendant  was  part  owner  and 
driver  of  a  jjublic  stage-coach  from  Nashua  to  Amherst  and  Fran- 
cestown;  that  on  the  31st  January,  1837,  the  plaintiff  applied  to 
him  to  be  received  into  his  coach,  at  Nashua,  and  conveyed  from 
thence  to  Amherst,  offering  to  pay  the  customary  fare ;  and  that  the 
defendant,  although  there  was  room  in  his  coach,  refused  to  receive 
the  plaintiff. 

It  appeared  in  evidence,  that  at  the  time  of  the  grievance  alleged 
there  were  two  rival  lines  of  daily  stages,  running  between  Lowell, 
in  Massachusetts,  and  Nashua;  that  Jonathan  B.  French  was  the 
proprietor  of  one  of  these  lines,  and  Nelson  Tuttle  of  the  other; 
that  Tuttle's  line  ran  no  farther  than  from  Lowell  to  Nashua;  that 
French  and  the  proprietors  of  the  defendant's  line  were  interested 
in  a  contract  for  carrying  the  United  States  mail  from  Lowell  to 
Francestown,  through  Amherst  (dividing  the  mail  money  in  pro- 
portion to  the  length  of  their  respective  routes) ,  so  as  to  form  one 
continuous  mail  route  from  Lowell  to  Francestown;  that  French 
and  the  proprietors  of  the  defendant's  line  had  agreed  to  run  their 
respective  coaches  so  as  to  form  a  continuous  line  for  passengers 
from  Lowell,  through  Amherst,  to  Francestown,  and  that  their 
agents  and  drivers  might  engage  seats  for  the  whole  distance,  at 
such  rates  of  fare  as  they  thought  expedient;  and  the  amount  thus 
received,  in   instances  where  they  thought  proper  to  receive  less 


502  CAKKIERS   OF   TASSENGERS. 

than  the  regular  fare,  was  to  be  divided  between  said  proprietors, 
in  proportion  to  the  length  of  their  respective  routes;  that  it  was 
also  agreed,  that  if  the  defendant's  line  brought  down  to  Nashua  an 
extra  "number  of  passengers,  French  should  see  them  through,  and 
be  at  the  expense  of  furnishing  extra  coaches  and  horses,  if  neces- 
sary, to  convey  them  to  Lowell;  and,  on  the  other  hand,  if  French's 
line  brought  up  an  extra  number  of  passengers  from  Lowell  to 
Nashua,  the  proprietors  of  the  defendant's  line  were  to  do  the  same, 
for  the  conveyance  of  such  passengers  above  Nashua;  and  that  it 
was  further  agreed  (as  Tuttle's  line  ran  no  farther  than  from  Lowell 
to  Nashua)  by  the  proprietors  of  the  defendant's  line,  that  they 
would  not  receive  into  their  coaches,  at  Nashua,  passengers  for 
places  above  Nashua,  who  came  up  from  Lowell  to  Nashua,  on  the 
same  day,  in  Tuttle's  line;  the  time  of  starting  from  Lowell  and 
arriving  at  Nashua  being  the  same  in  both  lines. 

One  of  the  requisitions  of  mail  contracts  is,  that  each  line  of 
stage-coaches  running  into  another,  so  as  to  form  a  continuous  mail 
line,  shall  give  preference  to  passengers  arriving  in  the  line  with 
which  it  connects,  and  shall  forward  them  in  preference  to  any 
others. 

There  were  several  other  lines  which  started  from  Lowell  at  the 
same  time  with  the  lines  before  mentioned,  running  to  other  places, 
through  Nashua;  and  it  was  generally  the  understanding  betwet^n 
their  respective  proprietors,  that  one  line  should  not  take,  for  a  part 
of  the  distance  where  the  route  was  the  same,  passengers  who  were 
going  on  further  in  another  line;  though  this  understanding  had 
been  occasionally  interrupted. 

The  plaintiff  being  at  Lowell  on  the  31st  of  January,  ISoT,  took 
passage  and  was  conveyed  to  Nashua  in  Tuttle's  line;  and  imme- 
diately on  his  arrival  at  Nashua  applied  to  be  received  into  the 
defendant's  coach,  and  tendered  the  amount  of  the  regular  fare. 
There  was  room  for  the  plaintiff  to  be  conveyed  on  to  Amherst,  but 
the  defendant  refused  to  receive  him. 

The  plaintiff  was  notified,  by  the  agent  of  the  line  of  French  and 
the  defendant,  at  Lowell,  previous  to  taking  passage  in  Tuttle's 
coach  for  Nashua,  tliat  if  he  wished  to  go  from  Nashua  to  Amherst 
on  that  day,  in  the  regular  mail  line,  he  must  take  tlie  mail  line  at 
Lowell;  and  that  if  lie  took  passage  in  Tuttle's  line  from  Lowell  to 
Nashua  he  would  Tiot  be  received,  at  Nashua,  into  the  defendant's 
coach. 

The  parties  agreed  that  judgment  should  be  rendered  for  the 
plaintiff,  for  nominal  damages,  or  for  the  defendant,  according  to 
the  opinion  of  this  court  upon  these  facts. 

I'AKKKR,  C.  J.  It  is  well  settled  that  so  long  as  a  common  car- 
rier has  convenient  room,  he  is  bound  to  receive  .and  carry  all  goods 
which  are  offered  for  transportation,  of  the  sort  he  is  aecustomed  to 
enrrv,  if  tliey  are  brouglit  at  a  reasonable  time,  and  in  a  suitable 


PUBLIC   CALLING.  503 

condition.  Story  on  Bailments,  328;  5  Bing.  R.  217  [169],  Eiley  y. 
Home  (15  Eng.  C.  L.  R.  426). 

And  stage-coaches  wliich  transport  goods  as  well  as  passengers, 
are,  in  respect  of  such  goods,  to  be  deemed  common  carriers,  and 
responsible  accordingly.     Story,  325. 

Carriers  of  passengers,  for  hire,  are  not  responsible,  in  all  partic- 
ulars, like  common  carriers  of  goods.  They  are  not  insurers  of  per- 
sonal safety  against  all  contingencies,  except  those  arising  from  the 
acts  of  God  and  the  public  enemy.  For  an  injury  happening  to  the 
person  of  a  passenger  by  mere  accident,  without  fault  on  their  part, 
they  are  not  responsible;  but  are  liable  only  for  want  of  due  care, 
diligence,  or  skill.  This  results  from  the  different  nature  of  the  case. 
But  in  relation  to  the  baggage  of  their  passengers,  the  better  opinion 
seems  to  be  that  they  are  responsible  like  other  common  carriers  of 
goods. 

And  we  are  of  opinion  that  the  proprietors  of  a  stage-coach ,  for 
the  regular  transportation  of  passengers,  for  hire,  from  place  to  place, 
are,  as  in  the  case  of  common  carriers  of  goods,  bound  to  take  all 
passengers  who  come,  so  long  as  they  have  convenient  accommoda- 
tion for  their  safe  carriage,  unless  there  is  a  sufficient  excuse  for 
a  refusal.  2  Sumner,  221  [519],  Jencks  u.  Coleman;  19  Wend. 
R.  239. 

The  principle  which  requires  common  carriers  of  goods  to  take  all 
that  are  offered,  under  the  limitations  before  suggested,  seems  well 
to  apply. 

Like  innkeepers,  carriers  of  passengers  are  not  bound  to  receive 
all  comers.  8  N.  H.  Rep.  523,  Markham  v.  Brown.  The  character 
of  the  applicant,  or  his  condition  at  the  time,  may  furnish  just 
grounds  for  his  exclusion.  And  his  object  at  the  time  may  furnish 
a  sufficient  excuse  for  a  refusal;  as,  if  it  be  to  commit  an  assault 
upon  another  passenger,  or  to  injure  the  business  of  the  proprietors. 

The  case  shows  the  defendant  to  have  been  a  general  carrier  of 
passengers,  for  hire,  in  his  stage-coach,  from  Nashua  to  Amherst, 
at  the  time  of  the  plaintiff's  application.  It  is  admitted  there  was 
room  in  the  coach;  and  there  is  no  evidence  that  he  was  an  improper 
person  to  be  admitted,  or  that  he  came  within  any  of  the  reasons 
of  exclusion  before  suggested. 

It  has  been  contended  that  the  defendant  was  only  a  special  car- 
rier of  passengers,  and  did  not  hold  himself  out  as  a  carrier  of  per- 
sons generally;  but  the  facts  do  not  seem  to  show  a  holding  out  for 
special  employment.  He  was  one  of  the  proprietors,  and  the  driver, 
of  a  line  of  stages  from  Nashua  to  Amherst  and  Francestown.  They 
held  themselves  out  as  general  passenger  carriers  between  those 
places.  But,  by  reason  of  their  connection  with  French's  line  of 
stages  from  Lowell  to  Nashua,  they  attempted  to  make  an  exception 
of  persons  who  came  from  Lowell  to  Nashua,  in  Tuttle's  stage,  on 
the  same  day  in  which  they  applied  for  a  passage  for  the  north.     It 


504  CARRIERS  OF  PASSENGERS. 

is  au  attempt  to  limit  their  responsibility  iu  a  particular  case,  or 
class  of  cases,  on  account  of  their  agreement  with  French. 

It  is  further  contended  that  the  defendant  and  other  proprietors 
had  a  right  to  make  rules  for  the  regulation  of  their  business,  and 
among  them  a  rule  that  passengers  from  Lowell  to  Amherst  and 
onward  should  take  French's  stage  at  Lowell;  and  that  by  a  notice 
brought  home  to  the  individual  the  general  responsibility  of  the 
defendant,  if  it  existed,  is  limited. 

But  we  are  of  opinion  that  the  proprietors  had  no  right  to  limit 
their  general  responsibility  in  this  manner. 

It  has  been  decided,  in  New  York,  that  stage-coach  proprietors 
are  answerable,  as  common  carriers,  for  the  baggage  of  passengers; 
that  they  cannot  restrict  their  common-law  liability  by  a  general 
notice  that  the  baggage  of  passengers  is  at  the  risk  of  the  owners; 
and  that  if  a  carrier  can  restrict  his  common-law  liability  it  can  only 
be  by  an  express  contract.  10  Wend.  234  [173].  Hollister  r.  Nowlen. 
And  this  principle  was  applied,  and  the  proprietors  held  liable  for 
the  loss  of  a  trunk,  in  a  case  where  the  passenger  stopped  at  a  place 
where  the  stages  were  not  changed,  and  he  permitted  the  stage  to 
proceed,  without  any  inquiry  for  his  baggage.  19  Wend.  251,  Cole 
r.  Goodwin.  However  this  may  be,  as  there  was  room  in  the 
defendant's  coach,  he  could  not  have  objected  to  take  a  passenger 
from  Nashua,  who  applied  there,  merely  because  he  belonged  to 
some  other  town.  That  would  furnish  no  sufficient  reason,  and  no 
rule  or  notice  to  that  effect  could  limit  his  duty.  And  there  is  as 
little  legal  reason  to  justify  a  refusal  to  take  a  passenger  from 
Nashua,  merely  because  he  came  to  that  place  in  a  particular  con- 
veyance. The  defendant  might  well  have  desired  that  passengers 
at  Lowell  should  take  French's  line,  because  it  connected  with  his. 
liut  if  lie  had  himself  been  the  projjrietor  of  the  stages  from  Lowell 
to  Nashua,  he  could  liave  had  no  right  to  refuse  to  take  a  passenger 
from  Nashua,  merely  because  he  did  not  see  tit  to  come  to  tliat  place 
in  his  stage.  It  was  not  for  him  to  inquire  whether  the  plaintiff 
came  to  Nashua  from  one  town  or  another,  or  by  one  conveyance  or 
another.  That  tiie  jilaintift"  projiosed  to  travel  onward  from  that 
place  could  not  injuriously  affect  the  defendant's  business;  nor  was 
the  plaintiff  to  l)e  punished,  because  he  had  come  to  Nashua  in  a 
particular  manner. 

The  defendant  had  good  right,  by  an  agreement  with  French,  to 
give  a  preference  to  the  passengers  wlio  came  in  French's  stage;  and 
a.s  they  were  carriers  of  the  mail  on  the  same  route,  it  seems  he  was 
l>ound  80  to  do  without  an  agreement.  If,  after  they  were  accom- 
modated, there  was  still  room,  lie  was  bound  to  carry  tlie  plaintiff, 
without  inquiring  in  what  line  he  came  to  Nashua. 

,luJ(jminit  fur  tltr  ]>htintiff. 


PUBLIC   CALLING,  505 


NEVIN  V.    PULLMAN  PALACE   CAR   CO. 

106  111.  222.     1883. 

Mr.  Justice  Mulkey.  This  was  an  action  on  the  case,  brought 
by  Luke  Nevin,  the  plaintiff  in  error,  in  the  Circuit  Court  of 
McLean  County,  against  the  Pullman  Palace  Car  Company,  the 
defendant  in  error,  for  refusing  to  permit  him  to  occupy  a  sleeping 
berth  in  one  of  its  cars,  which  had  been  assigned  to  him,  and  which 
he  was  ready  and  offered  to  pay  for.  The  Circuit  Court  sustained 
a  general  demurrer  to  the  declaration,  and  the  plaintiff  electing  to 
stand  by  his  declaration,  judgment  was  entered  against  him  for 
costs,  which,  on  appeal,  was  affirmed  by  the  Appellate  Court  for  the 
Third  District,  and  the  plaintiff  in  error  brings  the  record  here  for 
review. 

The  declaration,  omitting  mere  formal  averments  and  unnecessary 
verbiage,  charges,  in  substance,  that  the  plaintiff,  on  the  4th  day  of 
August,  1881,  at  Dubuque,  Iowa,  purchased  of  the  Illinois  Central 
Railroad  Company,  for  his  niece,  wife,  and  himself,  respectively, 
three  first-class  passenger  tickets  over  that  company's  railway,  from 
Dubuque,  Iowa,  to  Chicago,  this  State;  that  having  provided  him- 
self with  these  tickets,  he,  together  with  his  wife  and  niece,  about 
ten  o'clock  of  the  night  of  that  day,  and  just  before  the  train  from 
Dubuque  to  Chicago  started  out,  entered  a  sleeping  car  called  "Kal- 
amazoo," belonging  to  and  constituting  a  part  of  said  train,  which 
said  sleeping  car  was  then  in  the  possession  and  under  control  of 
the  defendant;  that  upon  entering  the  car  he  engaged  of  the  conduc- 
tor of  said  car  two  lower  berths,  at  one  dollar  and  fifty  cents  each; 
that  the  conductor  thereupon  assigned  one  berth  to  his  niece,  and 
one  to  plaintiff  and  his  wife,  promising  to  have  them  made  up  a 
little  later  in  the  night;  that  he  and  his  wife  took  the  seats  in  the 
berth  assigned  to  them,  and  remained  sitting  up,  in  an  orderly  man- 
ner, until  about  twelve  o'clock,  frequently,  in  the  mean  time,  request- 
ing the  conductor  to  have  the  berths  made  up,  so  t\\ey  could  retire 
to  rest,  and  at  the  same  time  tendering  to  him  the  price  agreed  to  be 
paid  therefor;  that  on  the  arrival  of  the  train  at  Lena,  this  State, 
about  the  hour  just  stated,  plaintiff  temporarily  left  his  seat,  and 
stepped  out  on  the  platform  of  the  sleeper,  intending  to  return 
immediately  to  his  berth,  when  the  conductor  instantly  closed  and 
secured  the  outer  doors  of  said  sleeper,  and  thereby  prevented  him 
from  again  entering  the  same ;  that  plaintiff'  endeavored  to  open  said 
doors  and  re-enter  said  car,  and  frequently  requested  the  conductor 
to  permit  him  to  do  so,  but  that  said  conductor,  instead  of  comply- 
ing with  his  request,  removed  his  satchel,  coats,  and  shoes  from,  the 


506  CARRIERS   OF   PASSENGERS. 

berth  so  assigned  to  him  and  his  wife,  to  another  ear,  and  ejected 
the  latter  from  said  sleeper;  by  means  of  which  plaintiff  was  com- 
jielled  to  take  and  occupy  a  seat  in  a  common  passenger  car  on  said 
train  till  its  arrival  in  Chicago,  by  reason  of  which  plaintiff  was 
deprived  of  his  rest  and  sleep,  in  consequence  of  which  "  he  became 
exceedingly  weary  and  sick,  and  was  greatly  humiliated,"  &c. ;  that 
his  expulsion  from  his  berth  in  the  manner  stated  was  done  wilfully 
and  maliciously,  and  that  the  only  reason  assigned  by  the  conductor 
for  refusing  the  price  of  the  berths  was,  "that  they  were  not  made 
up." 

It  is  not  claimed  or  jiretended,  as  we  understand  counsel,  that  the 
facts  alleged  in  the  declaration  do  not  show  a  good  cause  of  action, 
but  the  claim  rather  is,  that  they  disclose  a  right  to  recover  in 
assumpsit,  and  not  in  case,  — or,  in  other  words,  the  contention  is, 
that  the  plaintiff  has  misconceived  his  action;  that  the  onlj'  wrong 
complained  of  consists  of  a  breach  of  an  express  contract,  and  there- 
fore the  action  should  have  been  brought  in  form  ex  contractu,  and 
not  in  form  ex  delicto,  as  it  was. 

We  shall  not  attempt  a  review  of  the  authorities,  with  a  view  of 
extracting  from  them  some  general  principle  or  rule  by  which  the 
question  in  hand  may  be  satisfactorily  solved,  but  shall  content  our- 
selves with  adverting  to  such  general  rules  and  ])rinciples  relating 
to  the  subject  as  are  fully  established  by  the  authorities,  and  which 
we  regard  as  conclusive  of  the  question.  "We  have  been  led  to  adopt 
this  course  mainly  from  two  considerations.  In  the  first  place,  the 
cases  bearing  on  the  question  are  so  very  numerous  that  a  general 
review  of  them  would  be  an  almost  endless  undertaking;  and  in  the 
next  jdace,  it  would  be  impossible  to  harmonize  all  that  has  been 
said  by  the  courts,  even  of  the  highest  character,  in  attempting  to 
define  the  true  and  exact  limits  of  an  action  on  the  case. 

To  proceed,  then,  it  is  agreed  by  all  the  authorities  the  gravamen 
of  the  charge  in  an  action  on  the  case  is  the  tort  or  wrong  of  the 
defendant,  notwithstanding  such  tort  or  wrong  may  be  also  a  breach 
of  an  express  or  implied  contract,  whereas  in  an  action  ex  contractu 
the  fjist  of  the  action  is  the  breach  of  the  contract,  without  regard 
to  the  tortious  character  of  the  act  of  the  defendant.  It  follows, 
therefore,  if  there  is  a  right  of  recovery  at  all  in  tliis  case,  it  must 
Ije  upon  the  ground  the  defendant  has  been  guilty  of  some  tort  or 
wrong  resulting  in  damage  to  the  jdaintiff.  That  the  conduct  of  the 
defenriant  was  wrong  and  indcfensil)le,  and  that  the  ])laintiff  was 
■l  to  great  inconvenience  and  suffering  in  consequence  of  it, 
iiid  earinot  be  denied;  but  tl»c  contention  is,  that  all  the 
defendant  did  on  the  occasion  was  a  mere  breach  of  the  special  con- 
tract l>otween  the  parties,  and  that  the  remedy  therefore  is  on  the 
contract,  and  not  in  tort,  —  and  this  is  the  vital  question  in  the 
ca«c. 

Without  stopping,  for  the  i)resent,  to  inipiire  whetlier  the  i)osi- 


PUBLIC   CALLING.  507 

tiou  of  the  defendant  is  well  founded  to  the  extent  claimed,  but  con- 
ceding it  to  be  so  for  the  purposes  of  the  argument,  is  it  true,  as  a 
universal  proposition,  that  this  form  of  action  will  not  lie  in  any 
case  where  the  conduct  complained  of  is  a  direct  breach  of  an  express 
contract?  Certainly  not.  A  simple  illustration  will  demonstrate 
the  fallacy  of  such  a  position.  Suppose  A  contracts  with  B  to  keep 
the  latter's  horse  for  an  indefinite  period  at  fifty  cents  a  day,  the 
horse  to  be  returned  to  B  on  demand,  and  A,  after  having  been  paid 
all  charges  for  the  keep  of  the  horse,  should  refuse  to  redeliver  him 
to  B,  on  demand,  no  one,  in  such  case,  would  question  for  a  moment 
the  right  of  B  to  maintain  an  action  of  trover  against  A  for  the 
horse,  which  is  one  species  of  the  action  on  the  case,  and  yet,  in  the 
case  supposed,  the  refusal  of  A  to  deliver  the  horse,  the  real  cause 
of  action  is,  in  the  strictest  sense  of  the  term,  a  direct  breach  of  the 
special  contract  between  the  parties.  While  the  fact  that  the  act  or 
acts  complained  of  constitute  the  breach  of  a  special  contract  between 
the  parties  may  always  be  looked  to,  in  connection  with  other  ele- 
ments that  enter  into  the  question,  it  is  by  no  means  conclusive  in 
determining  whether  case  will  lie.  An  examination  of  the  standard 
authors  who  have  treated  of  this  subject,  as  well  as  of  the  decisions 
bearing  on  the  question,  conclusively  shows  that  there  are  many 
elements  that  often  enter  into  the  question  besides  the  one  just  men- 
tioned, such  as  the  business,  profession  or  calling  of  the  wrong-doer; 
the  character  of  the  relations  between  the  parties,  —  whether  one 
of  trust  and  confidence,  or  otherwise;  whether  the  defendant  rests 
under  any  implied  duties  or  obligations  to  the  plaintifi",  arising 
either  ex  contractu  or  ex  lerje,  and  the  like.  One  or  more  of  these 
considerations  often  become  important  factors  in  determining  whether 
the  action  will  lie. 

It  is  a  familiar  doctrine  that  case  will  lie  for  a  mere  nonfeasance 
against  persons  exercising  certain  public  trades  or  employments, 
where  no  contractual  relation  exists  between  them  and  the  plaintiff, 
as  where  a  common  carrier,  having  the  requisite  means  of  transpor- 
tation, refuses  to  carry  goods  or  passengers.  Chitty,  in  discussing 
this  matter,  in  his  work  on  Pleadings,  says :  "  There  are,  however, 
some  particular  instances  of  persons  exercising  certain  public  trades 
or  employments,  who  are  bound  by  law  to  do  what  is  required  of 
them  in  the  course  of  their  employments  without  aid  of  express  con- 
tract, and  are  in  return  entitled  to  a  recompense,  and  may,  there- 
fore, be  sued  in  case,  as  for  a  breach  of  duty  in  refusing  to  exercise 
their  callings, — as,  where  a  common  carrier,  having  convenience, 
refuses  to  carry  goods,  being  tendered  satisfaction  for  the  carriage; 
or  an  inn-keeper  to  receive  a  guest,  having  room  for  him;  or  a  smith 
having  materials  for  the  purpose,  to  shoe  a  horse  for  a  traveller;  or 
a  ferryman  to  convey  one  over  a  common  ferry ,  and  the  like."  (Vol. 
I.  136.)  It  is  clear,  from  the  language  of  this  author,  the  classes  of 
persons  enumerated  are  intended  as  mere  examples  of  the  applica- 


508  CARRIERS    OF   PASSENGERS. 

tion  of  the  general  principle  stated,  and  not  as  a  limitation  of  the 
rule  itself,  and  by  a  well-recognized  rule  of  the  common  law  the 
same  principle  should  be  extended  to  all  other  trades  and  callings 
that  bear  the  same  relation  to  the  public  as  those  just  enumerated, 
and  the  fact  that  no  precedent  can  be  found  for  it  is  entitled  to  but 
little  consideration,  when  it  is  clear  the  case  in  hand  falls  within 
the  principle.     This  is  particularly  true  with  respect  to  extending 
as  a  remedy  the  action  we  are  considering,  to  new  states  of  facts, 
where  they  clearly  fall  within  the  general  principle  upon  which  the 
action  is  maintained.     To  the  objection  there  was  no  precedent  for 
the  action  made  on  a  certain  occasion  before  Pratt,  Ch.  J.  (after- 
wards Lord  Camden),  he  is  reported  to  have  said:  "I  wish  never  to 
hear   this  objection  again.     The   action    is    for  a  tort.     Torts  are 
infinitely  various,  not  limited  or  confined,  for  there  is  nothing  in 
nature  but  may  be  an  instrument  of  mischief."     Indeed,  the  writ  in 
case,  as  its  very  name  imports,  was  invented  for  the  express  pur- 
pose of  giving  a  remedy  where  none  of  the  old  forms  of  writs  were 
applicable,  and  the  British  Parliament,   by  Stat.   Westm.  2  C.  24, 
with  the  view  of  promoting  the  remedy   by   this    writ,    expressly 
directed  thai  "  where  in  one  case  a  writ  is  granted,  in  like  case, 
when  like  remedy  falleth,  the  writ  shall  be  made  as  hath  been  used 
before;"  and  when  '"in  one  case  a  writ  is  found,  and  in  like  case, 
falling  under  like  law,  and  requiring  like  remedy,  is  found  none,  the 
clerks  of  the  chancery  shall  agree  in  making  the  Avrit."    2  Inst.  404. 
Since,  as  we  have  just  seen,  certain  legal  consequences  affecting 
the  question  we  are  considering  result  from  the  exercise  of  certain 
public  trades  or  employments,  it  becomes  important  to  determine, 
with  some  degree  of  particularity,  the  true  relation  which  the  Pull- 
man Palace  Car  Company  sustains  to  the  public,  and  to  point  out, 
so  far  as  we  are  able,  the  difference  between  it  and  persons  or  com- 
panies exercising  public  callings  or  employments  like  those  above 
(•numerated,  if,  indeed,  any  such  ditference  exists.     Like  an  ordinary 
railway  company  engaged  in  the  transportation  of  freight  and  pas- 
sengers,  this  company  transacts  its  entire  business,  so  far  as  it 
relates  to  this  case,  over  the  various  railways  in   this   and   other 
States.     Like  railway  companies,  it  exercises  special  privileges  and 
franchises  granted  to  it  by  the  State,  and  its  business  is  transacted 
almost  exclusively  with  the  travelling  public.     Its  cars  on  the  various 
lines  of  road  are  extensively  advertised  all  over  the  country,  setting 
forth,  in  fitting  terms,  the  accommodations  and  comforts  they  afford, 
rates  of  charges,  &C.,  and  the  jmhlic  are  earnestly  invited  to  avail 
tliemselvcs  of  the  advantages  and  comforts  they  thus  offer.     In  what 
r»'f:i»ect,  then,  does  this  company  differ  in  its  relation  to  the  public, 
8o  far  as  the  present  inquiry  \e  concerned,  from  an  ordinary  rail- 
way company?     No  difference  lias  been  pointed  out  by  counsel,  and 
we  are  confident  none  can   be.     Why,  llien,  shoiild   not  tlie  same 
priiifii.lfvi  l.c  lifld  to  applv  to  it  tlirit  apiily  to  common  carriers,  and 


PUBLIC   CALLING.  509 

others  in  like  employments,  in  so  far  as  their  relation  to  the  public 
is  the  same?  To  say  there  is  no  precedent  for  it,  we  have  just  seen, 
is  not  a  sufficient  answer.  Indeed,  it  has  ever  been  the  boast  of  the 
common  law,  that,  by  reason  of  its  elasticity,  it  adjusts  and  moulds 
itself  to  meet  the  constant  changes  in  the  affairs  of  life,  and  that  it 
never  hesitates  to  apply  old  rules  to  new  cases,  when  it  is  clear  they 
come  within  the  reasons  or  principles  of  such  rules.  The  business 
of  this  company  in  running  its  elegant  and  commodious  sleepers 
over  various  lines  of  railways  has  become  one  of  the  great  industries 
and  enterprises  of  the  country,  contributing,  perhaps,  as  much  or 
more,  than  any  one  thing  to  the  convenience  and  comfort  of  the 
travelling  public.  Indeed,  the  running  of  these  sleepers  has  become 
a  business  and  social  necessity.  Such  being  the  case,  can  it  be 
maintained  the  law  imposes  no  obligations  or  restrictions  on  this 
company  in  the  discharge  of  its  duties  to  the  public?  Or,  more 
accurately  put,  is  it  true  this  company  owes  no  duties  to  the  public 
except  such  as  are  due  from  one  mere  private  person  to  another? 
Can  it  be  possible  that  the  common  carrier,  the  ferryman,  the  inn- 
keeper, and  even  the  blacksmith  on  the  roadside,  are  all,  by  reason 
of  the  public  character  of  their  business,  by  mere  force  of  law,  placed 
under  special  obligations  and  duties  to  the  public  which  they  are 
bound  to  observe  in  the  exercise  of  their  respective  callings,  while, 
at  the  same  time,  this  company  is  entirely  relieved  from  the  observ- 
ance of  all  such  duties  and  obligations  which  are  not  expressly 
contracted  for?  We  think  not.  To  so  hold  would  be  to  unjustly 
discriminate  between  parties  similarly  situated,  and  make  the  law 
inconsistent  with  itself,  to  the  great  detriment  of  the  public. 

If,  then,  this  company  owes  any  duties  to  the  community  by 
reason  of  its  relation  to  the  public,  as  we  hold  it  does,  manifestly 
one  of  them  is,  that  it  shall  treat  all  persons  whose  patronage  it  has 
solicited  with  fairness  and  without  unjust  discrimination.  When, 
therefore,  a  passenger,  who,  under  the  rules  of  the  company,  is 
entitled  to  a  berth  upon  payment  of  the  usual  fare,  and  to  whom  no 
personal  objection  attaches,  enters  the  company's  sleeping  car  at  a 
proper  time  for  the  purpose  of  procuring  accommodations,  and  in  an 
orderly  and  respectful  manner  applies  for  a  berth,  offering  or  ten- 
dering the  customary  price  therefor,  the  company  is  bound  to  fur- 
nish it,  provided  it  has  a  vacant  one  at  its  disposal.  To  require 
this  of  the  company  is  merely  exacting  of  it  that  which  is  clearly 
dictated  by  the  plainest  principles  of  justice  and  fair  dealing.  To 
construe  the  law  otherwise  might  lead  to  great  abuses  and  the 
grossest  injustice,  detrimental  alike  to  public  and  private  interests. 
Suppose,  for  instance,  a  party  who,  by  reason  of  advanced  age  or 
feeble  health,  is  unable  to  travel  after  night  except  in  a  sleeper, 
having  an  important  business  engagement  at  a  distant  point  on  a 
specified  day,  with  a  choice  of  several  routes,  after  having  examined 
the  advertisements  relating  to  them  makes  his  selection  of  the  one 


510  CAKRIEKS   OF   PASSENGERS. 

'  •  through  sleepers,  and  accordingly  arranges  his  time  of 
so  as  to  reach  his  destination  by  travelling  day  and  night. 
At  the  appointed  time  for  leaving  he  provides  himself  with  a  first- 
class  ticket  over  the  road  and  enters  the  sleeper,  where  he  finds 
plenty  oi  vacant  berths,  and  asks  the  conductor  to  assign  him  one, 
tendering  the  customary  price  therefor,  but  the  conductor,  from 
some  private  pique",  or  from  mere  wantonness,  refuses  to  let  him 
have  one,  and  by  reason  of  such  refusal  he  is  unable  to  meet  his 
business  engagement,  whereby  he  is  subjected  to  great  pecuniary 
loss.  Can  it  be  said  there  is  no  remedy  in  such  case?  Certainly  it 
can.  if  the  law  does  not,  under  the  circumstances  supposed,  impose 
up-u  the  company  the  duty  of  furnishing  berths  when  it  has  them 
for  disposal.  But,  as  we  have  already  seen,  such  is  not  the  law. 
Holding  then,  as  we  do,  where  there  are  sleeping  berths  not  engaged, 
it  is  the  duty  of  the  company,  upon  the  payment  or  tender  of  the 
customary  price,  to  furnish  them  to  applicants  when  properly  called 
for  by  unobjectionable  persons,  it  follows  the  defendant  was  not 
justifiable  in  refusing  to  let  the  plaintiff  have  one  for  himself  and 
wife,  and  it  is  well  settled  the  fact  there  was  a  special  contract 
between  the  company  and  the  plaintiff,  upon  which  an  action  of 
a^ssiimpsit  might  have  been  maintained,  does  not  at  all  affect  the 
right  to  recover  in  the  present  form  of  action,  which  is  founded 
upon  the  defendant's  common  law  liability,  as  above  stated. 

Hut  outside  of  this  view,  of  the  soundness  of  which  we  have  no 
doubt,  the  same  result  may  be  reached  by  a  someAvhat  different 
j.rocess,  though  the  principle,  perhaps,  is  the  same  in  both  cases. 
Let  us  assume,  then,  for  tlie  purposes  of  the  argument,  tlie  defend- 
ant owes  to  the  public  no  common  law  duties  in  the  absence  of  any 
contract  relating  to  its  business.  It  would  then  follow  the  defend- 
ant is  under  no  obligation  to  the  plaintiff,  "except  such  as  grew  out 
of  the  contract  entered  into  between  tliem.  But  it  does  not  follow 
that  all  the  dutii-s  growing  out  of  the  contract  on  eitlier  side  must 
have  been  expressly  stipulated  for.  On  the  contrary,  nothing  is 
Iwtter  settled  than  that  in  many  contracts,  especially  those  which 
establish  peculiar  relations  between  tlu'  parties,  as,  those  of  confi- 
■:<\  trust,  the  law  sihnitly  annexes  certain  conditions,  and 
.     _  mutual  obligations  and  duties,  whicli  are  not  all,  in  exjjress 

terms,  provided  for  in  the  contract,  yet,  in  contemplation  of  law, 

'  "'  nevertheless  regarded  as  a  part  of  the  contract,  and  the 

'   rmance   of   tliom    may,    in   an  action   on  the  contract,  be 

;   as  a  breach  thereof.     lUit  while  nsninujisit  will  certainly 

t  breach  oi  these  imi)licd  duties,  it  is  equally  well  settled 

that  rase  will  lie  also.     Strictly  speaking,  these  duties  arise  ex  lege 

'    *     '  *' '   '■   Ti  created  by  the  contract.     As  familiar  illustrations 

titract.s,  wliich  give  rise  to  an  almost  intinite  variety 

'  and  obligations,  may  be  mentioned  those  between 

y,  physician  and  patient,  carrier  and  shipper,  and, 


PUBLIC   CALLING.  511 

in  short,  every  species  of  bailment.  In  all  these  and  analogous 
cases  it  is  conceded  case  is  a  concurrent  remedy  with  assumpsit  for  a 
breach  of  the  implied  duties  growing  out  of  any  of  these  relations. 

Now,  when  we  look  at  the  contract  between  the  plaintiff  and 
defendant,  the  character  of  the  business  of  the  company,  the  subject 
matter  of  the  contract,  the  relations  of  the  parties  with  respect  to 
such  subject  matter,  and  all  the  circumstances  attending  the  transac- 
tion, can  it  be  doubted  for  a  moment,  that  the  contract  falls  within 
the  same  class  of  contracts  as  those  between  carrier  and  passenger, 
and  the  like?  Can  it  be  questioned  that  upon  assigning  the  two 
berths  to  the  plaintiff  upon  the  terms  which  he  agreed  to  and  offered 
to  comply  with,  and  which  the  company  agreed  to  accept,  the  con- 
tract thus  made  at  once  became  obligatory  and  binding  upon  the 
parties,  and  that  it  established  a  special  relation  between  them,  such 
as  that  between  carrier  and  passenger,  and  the  like,  to  Avhich  the 
law,  of  its  own  force,  annexed  certain  implied  obligations  and 
duties,  to  be  respectively  observed  and  performed  by  the  parties 
towards  each  other?  Clearly  not.  What  were  some  of  these  implied 
duties?  On  the  part  of  the  plaintiff,  he  impliedly  agreed  to  conduct 
himself  in  a  quiet  and  orderly  manner,  to  take  due  and  proper  care 
of  the  berths  while  in  his  possession,  and  surrender  the  same  at  the 
end  of  his  journey  in  as  good  condition  as  when  assigned  to  him, 
necessary  wear  excepted.  On  the  part  of  the  company  it  was  im- 
pliedly stipulated  that  it  would  use  all  reasonable  and  proper  means 
within  its  power  to  preserve  order  and  decorum  in  the  sleeper  dur- 
ing the  journey,  and  especially  during  sleeping  hours,  and  that  it 
would  furnish  and  keep  on  hand  such  supplies  and  conveniences  as 
are  usually  found  in  like  sleepers,  and  are  necessary  to  the  health 
a,nd  comfort  of  passengers,  and  also  that  it  would  permit  the  plain- 
tiff to  quietly  and  peaceably  occupy  the  berth  engaged  by  him  dur- 
ing the  journey,  and  not  expel  him  or  his  wife  from  the  car  or  such 
berth,  or  otherwise  attempt  to  interfere  with  its  proper  use  and 
enjoyment,  so  long  as  he  and  his  wife  demeaned  themselves  with 
propriety.  None  of  these  duties  were,  or  ever  are,  expressly  stipu- 
lated for  by  one  engaging  a  sleeping  berth,  for  the  simple  reason  the 
law  always  implies  them  from  the  relation  of  the  parties  created 
by  the  contract  securing  a  berth;  and  for  a  breach  of  any  of  these 
implied  duties  it  is  clear,  as  already  shown,  case  is  a  concurrent 
remedy  with  assumpsit,  and,  indeed,  is  always  the  more  appropriate 
remedy  where  matters  of  aggravation  are  relied  on  as  an  element  of 
damage.  It  is  clear,  in  the  present  case,  the  defendant  utterly  dis- 
regarded its  duty  in  not  making  up  the  berth  of  the  plaintiff,  and 
in  not  permitting  him  and  his  wife  to  occupy*  it  through  the  night, 
and  in  expelling  them  from  the  car,  and  for  this  it  must  be  held 
liable. 

The  view  here  expressed  is  believed  to  be  in  consonance  with  the 
general  principles  of  the  law,  and  is  clearly  sustained  by  some  of 


512  CARRIERS  OF  PASSENGERS. 

the  best-considered  eases,  both  English  and  American,  l^urnett  v. 
Lynch,  5  Barn.  &  Cress.  589;  11  Eug.  Com.  Law,  597;  Hancock  r. 
Coffin,  21  Eng.  Com.  Law,  318;  Dickson  v.  Clifton,  2  Wils.  319; 
Boorman  v.  Brown,  3  Adol.  &  E.  (N.  S.)  525.  In  this  last  ease. 
Chief  Justice  Tindal,  in  delivering  the  judgment  in  the  Exchequer 
Chamber,  entered  into  an  extended  review  of  the  authorities,  and  in 
summing  up  used  this  language:  "The  principle  in  all  these  cases 
would  seem  to  be,  that  the  contract  creates  a  duty,  and  the  neglect 
to  perform  that  duty,  or  the  nonfeasance,  is  a  ground  of  action  upon 
a  tort,"  —  and  this  case  was  affirmed  on  appeal  to  the  House  of 
Lords.  11  CI.  &  Fin.  44.  In  this  case.  Lord  Campbell,  in  deliver- 
ing the  judgment  in  the  House  of  Lords,  says :  "  I  think  the  judg- 
ment of  the  Court  of  Exchequer  Chamber  is  right,  for  you  cannot 
confine  the  right  of  recovery  merely  to  those  cases  where  there  is  an 
employment  without  any  special  contract.  But  wherever  there  is  a 
contract,  and  something  to  be  done  in  the  course  of  the  employment 
which  is  the  subject  of  that  contract,  if  there  is  a  breach  of  the  duty 
in  the  course  of  that  employment  the  plaintiff  may  recover,  either 
in  tort  or  in  contract."  This,  subject  to  the  limitation  hereafter  to 
be  stated,  we  regard  as  the  true  rule  on  the  subject. 

It  is  often,  and  indeed  generally,  stated,  the  action  lies  only  for 
the  breach  of  the  common  law  duty,  and  this  we  believe  to  be 
strictly  true;  yet  there  is  some  confusion  in  the  cases  as  to  what  is 
meant  by  a  common  law  duty,  growing  out  of  the  fact  that  it  some- 
times arises  without  the  intervention  of  a  contract  and  sometimes 
with  it,  and  in  the  latter  case  it  is  often  said,  as  in  the  case  last 
cited,  "the  contract  creates  the  duty,"  and  while  this  is  true  and 
accurate  enough  in  a  certain  sense,  yet  when  we  attempt  to  define 
with  precision  just  when  the  action  will  lie  and  when  it  will  not, 
the  statement  is  not  sufficiently  definite,  for  it  must  be  conceded  the 
law  makes  it  the  duty  of  every  one  to  perform  his  contract,  and  it  is 
clear  case  will  not  lie  for  the  breach  of  every  duty  created  by  con- 
tract. If  one  contracts  to  deliver  to  anotlier  a  load  of  wood,  or  pay 
a  specific  sum  of  money  on  a  given  day,  and  fails  to  do  so,  an  action 
on  the  contract  alone  will  lie,  —  and  yet  it  is  manifest,  in  the  case 
supposed,  there  has  ])een  a  breach  of  duty  created  by  the  contract. 
We  tliink  it  more  accurate,  therefore,  to  say  that  case  lies  only  for 
the  breach  of  such  duties  as  the  law  imi)lies  from  the  existing  rela- 
tions of  the  parties,  whetlicr  such  relatiuns  have  been  establislied 
with  or  without  the  aid  of  a  contract;  but  if  created  by  contract,  it 
is  no  objection  to  the  action  that  the  performance  of  the  duty  in 
fjuestion  has  Vjeen  expressly  stipulated  for,  if  it  would  have  existed 
■n  of  such  relations  witljout  sueli  stipulation.  This  is  well 
■'•d  by  tlie  case  put  in  the  early  ])art  of  this  opinion,  where 
B  let  his  horse  to  A,  to  be  kept  at  a  stiinilated  price  per  day,  and 
returned  on  demand.  Now,  in  that  case,  by  tlie  mere  delivery  of 
the  horse,  to  be  kept  at  the  price  agreed  ujion,  the  law  implied  or 


PUBLIC   CALLING.  513 

imposed  the  duty  of  returning  him  upon  demand,  without  any  agree- 
ment to  that  effect,  and  the  duty  being  thus  implied  by  law,  inde- 
pendently of  the  express  stipulation  for  its  performance,  case  clearly 
would  lie  for  its  breach. 

The  general  principle  seems  to  be  this:  Where  the  duty  for  whose 
breach  the  action  is  brought  would  not  be  implied  by  law  by  reason 
of  the  relations  of  the  parties,  whether  such  relations  arose  out  of 
a  contract  or  not,  and  its  existence  depends  solely  upon  the  fact  that 
it  has  been  expressly  stipulated  for,  the  remedy  is  in  contract,  and 
not  in  tort,  —  when  otherwise,  case  is  an  appropriate  remedy.  Of 
course,  assumjjslt  is  a  concurrent  remedy  with  case,  in  all  cases  where 
there  is  an  express  or  implied  contract. 

The  judgment  of  the  Appellate  Court  is  reversed,  and  the  cause 
remanded,  with  directions  to  that  court  to  reverse  the  judgment  of 
the  Circuit  Court,  and  remand  the  cause  for  further  proceedings  not 
inconsistent  with  the  views  here  expressed. 


THE   D.    R.    MAETIN. 
11  Blatchf.  (U.  S.  C.  C.)  233.     1873. 

HuxT,  J.  On  a  trial  before  the  district  judge,  the  libellant,  David 
F.  Barney,  recovered  the  sum  of  f  1000  as  his  damages  for  ejecting 
him  from  the  steamboat  "D.  R.  Martin,"  on  the  morning  of  October 
23,  1871.  On  an  application  subsequently  made  to  him,  the  dis- 
trict judge  reduced  the  recovery  to  the  sum  of  $500.  A  careful 
perusal  of  all  the  testimony  satisfies  me  that  the  libellant  was  pur- 
suing his  business  as  an  express  agent  on  board  of  the  boat,  that  he 
persisted  in  it  against  the  remonstrance  of  the  claimant,  and  that  it 
was  to  prevent  the  transaction  of  that  business  by  him  on  board  of 
the  boat  that  he  was  ejected  therefrom  by  the  claimant. 

The  steamboat  company  owning  this  vessel  were  common  carriers 
between  Huntington  and  New  York.  They  were  bound  to  trans- 
port every  passenger  presenting  himself  for  transportation,  who  was 
in  a  fit  condition  to  travel  by  such  conveyance.  They  were  bound, 
also,  to  carry  all  freight  presented  to  them  in  a  reasonable  time 
before  their  hours  of  starting.  The  capacity  of  their  accommoda- 
tion was  the  only  limit  to  their  obligation.  A  public  conveyance  of 
this  character  is  not,  however,  intended  as  a  place  for  the  transac- 
tion of  the  business  of  the  passengers.  The  suitable  carriage  of 
persons  or  property  is  the  only  duty  of  the  common  carrier.  A 
steamboat  company  or  a  railroad  company  is  not  bound  to  furnish 
travelling  conveniences  for  those  who  wish  to  engage  on  their 
vehicles  in  the  business  of  selling  books,  papers,  or  articles  of  food, 

33 


514  CARRIERS   OF   PASSENGERS. 

or  in  the  business  of  receiving  and  distributing  parcels  orlDaggage, 
nor  to  permit  the  transaction  of  this  business  in  their  vehicles,  when 
it  interferes  with  their  own  interests.  If  a  profit  may  arise  from 
such  business,  the  benefit  of  it  belongs  to  the  company,  and  they 
are  entitled  to  the  exclusive  use  of  their  vehicles  for  such  purposes. 
This  seems  to  be  clear  both  upon  principle  and  authority.  Story 
onBailra.,  §591  a;  Jencks  v.  Coleman,  2  Sumn.,  221  [519];  Burgess 
V.  Clements,  4  Maule  &  S.,  30C;  Fell  v.  Knight,  8  ^lees.  &  W.,2G9; 
Commonwealth  v.  Power,  1  Am.  R'y  Cas.,  3S9.  These  cases  show 
that  the  principle  thus  laid  down  is  true  as  a  general  rule.  The  case 
of  The  New  Jersey  Steam  Xav.  Co.  v.  Merchants'  Bank,  6  How., 
344,  shows  that  it  is  especially  applicable  to  those  seeking  to  do  an 
express  business  on  such  conveyances.  It  is  there  held,  in  sub- 
stance, that  the  carrier  is  liable  to  the  owner  for  all  the  goods 
shipped  on  a  public  conveyance  by  an  express  company,  without 
regard  to  any  contract  to  the  contrary  between  the  carrier  and  the 
express  company.  Although  the  carrier  may  have  no  custody  or 
control  of  the  goods,  he  is  liable  to  the  owner  in  case  of  loss  if  he 
allows  them  to  be  brought  on  board.  It  is  the  simplest  justice  that 
he  should  be  permitted  to  protect  himself  by  preventing  their  being 
brought  on  board  by  those  having  them  in  charge.  This  rule  would 
not  exclude  the  transmission,  as  freight,  of  any  goods  or  property 
which  the  owners  or  agents  should  choose  to  place  under  the  care 
and  control  of  the  carrier. 

That  persons  other  than  the  libellant  carried  a  carpet-bag  without 
charge,  or  that  such  bag  occasionally  contained  articles  forwarded 
by  a  neighbor  or  procured  for  a  friend,  does  not  affect  the  carrier's 
right.  The  cases  where  this  was  proved  to  have  been  done  were 
rare  and  exceptional,  and  do  not  appear  to  have  been  known  to  the 
carrier,  nor  does  it  appear  that  any  compensation  was  paid  to  the 
agent.  They  were  neigliborly  and  friendly  services,  such  as  people 
in  the  country  are  accustomed  to  render  for  each  other.  P)ut,  if  the 
service  and  the  Ijusiness  had  been  ])recisely  like  tliat  of  the  libellant, 
the  rule  would  have  been  the  same.  The  rights  of  the  carrier  in 
respect  to  A  are  not  gone  or  impaired  for  the  reason  that  he  waives 
his  rights  in  respect  to  B,  especially  if  A  he  notified  that  the  rights 
are  insisted  upon  as  to  him.  If  Mr.  Prime  was  ])ermitted  to  carry 
a  bag  without  cliarge  on  the  claimant's  boat,  or  to  do  a  limited 
express  business  thereon,  this  gave  the  libellant  no  right  to  do  such 
business,  when  notified  V)y  the  carrier  that  he  must  refrain  from 
it.  A  carrier,  like  all  others,  may  bestow  favor  where  he  cliooses. 
liights,  not  favors,  are  the  subject  of  demand  by  all  jiartios  indis- 
criminately. The  incidental  benefit  arising  from  the  transaction  of 
such  business  a-s  may  be  done  on  board  of  a  boat  or  on  a  car  belongs 
to  the  carrier,  and  he  can  allow  tlie  privilege  to  one  and  exclude 
from  it  another,  at  liis  pleasure.  A  steamboat  company,  or  a  rail- 
road company,  may  well  allow  an  individual  to  ojien  a  restaurant 


PUBLIC   CALLING.  515 

or  a  bar  on  their  conveyance,  or  to  do  the  business  of  boot  blacking, 
or  of  peddling  books  and  papers.  This  individual  is  under  their 
control,  subject  to  their  regulation,  and  the  business  interferes  in 
no  respect  with  the  orderly  management  of  the  vehicle.  But,  if 
every  one  that  thinks  fit  can  enter  upon  the  performance  of  these 
duties,  the  control  of  the  vehicle  and  its  good  management  would 
soon  be  at  an  end.  The  cars  or  boats  are  those  of  the  carrier,  and, 
I  think,  exclusively  his,  for  this  purpose.  The  sale  or  leasing  of 
these  rights  to  individuals,  and  the  exclusion  of  others  therefrom, 
come  under  the  head  of  reasonable  regulations,  which  the  courts 
are  bound  to  enforce.  The  right  of  transportation,  which  belongs 
to  all  who  desire  it,  does  not  carry  with  it  a  right  of  traffic  or  of 
business. 

It  is  insisted  that  the  libellant  could  not  legally  be  ejected  from 
the  boat  for  any  offence,  or  violation  of  rules,  committed  on  a  former 
occasion.  It  is  insisted,  also,  that,  having  purchased  a  ticket  from 
the  agent  of  the  company,  his  right  to  a  passage  was  perfect. 
Neither  of  these  propositions  is  correct.  In  Commonwealth  v. 
Power,  7  Mete,  596,  the  passenger  had  actually  purchased  his 
ticket,  and  the  Chief  Justice  says:  "If  he.  Hall,  gave  no  notice  of 
his  intention  to  enter  the  car  as  a  passenger,  and  of  his  right  to  do 
so,  and  if  Power  believed  that  his  intention  was  to  violate  a  reason- 
able subsisting  regulation,  then  he  and  his  assistants  were  justified 
in  forcibly  removing  him  from  the  depot."  In  Pearson  v.  Duane, 
4  Wall.,  605,  Mr,  Justice  Davis,  in  giving  the  opinion  of  the  court, 
held  the  expulsion  of  Duane  to  have  been  illegal,  because  it  was 
delayed  until  the  vessel  had  sailed.  "But  this  refusal,"  he  says, 
"  should  have  preceded  the  sailing  of  the  ship.  After  the  ship  had 
got  to  sea,  it  was  too  late  to  take  exceptions  to  the  character  of  a 
passenger,  or  to  his  peculiar  position,  provided  he  violated  no  in- 
flexible rule  of  the  boat  in  getting  on  board."  The  libellant,  in  this 
case,  refused  to  give  any  intimation  that  he  would  abandon  his  trade 
on  board  the  vessel.  The  steamboat  company,  it  is  evident,  were 
quite  willing  to  carry  him  and  his  baggage,  and  objected  only  to  his 
persistent  attempts  to  continue  his  traffic  on  their  boat.  He  insisted 
that  he  had  the  right  to  pursue  it,  and  the  company  resorted  to  the 
only  means  in  their  power  to  compel  its  abandonment,  to  wit,  his 
removal  from  the  boat.  This  was  done  with  no  unnecessary  force, 
and  was  accompanied  by  no  indignity.  In  my  opinion,  the  removal 
was  justified,  and  the  decree  must  be  reversed. 


516  CAr.KIERS   OF   PASSENGERS. 


THrrvST<:>x  r.  uxiox  tactfic  r.  co. 

4  Dillon  (U.  S.  C.  C),  321.     1S77. 

It  was  alleged,  and  not  denied,  that  jDlaintiff  had  purchased  from 
the  road,  for  fifty  cents,  a  ticket  for  crossing  the  river  on  the  trans- 
fer train,  and  that  when  the  train  was  about  starting  he  attempted 
to  board  it,  but  was  prevented.  He  also  purchased,  for  ninety 
cents,  from  the  company  a  ticket  good  on  another  road,  but  was 
forcibly  ejected  from  the  train,  and  obliged  to  remain  in  Omaha 
several  days  before  he  could  safely  get  away,  for  which  he  asked 
So<M)0  damages.  The  defendant  admitted  that  the  necessary  force 
(but  no  more)  was  used  to  prevent  his  entering  the  train.  It  was 
claimed  that  he  had  been  for  years  a  notorious  gambler,  —  a"monte- 
man,"  so-called,  — and  was  then  engaged  in  travelling  on  the  defend- 
ant's road  for  the  purpose  of  plying  that  calling,  and  was  about  to 
enter  the  train  for  that  purpose.  This  the  iilaintilf  denied.  The 
question  was,  whether  the  defendant  has  the  right  to  exclude  gam- 
blers from  its  trains?  Upon  tliis  point  the  charge  of  the  court  is 
given  below. 

Dundy,  J.  The  railway  company  is  bound,  as  a  common  carrier, 
when  not  over-crowded,  to  take  all  proper  persons  wlio  may  fipply 
for  transportation  over  its  line,  on  their  complying  with  all  reason- 
able rules  of  the  company.  But  it  is  not  bound  to  carry  all  persons 
at  all  times,  or  it  might  be  utterly  unable  to  protect  itself  from  ruin. 
It  would  not  be  obliged  to  carry  one  whose  ostensible  business  might 
l>e  to  injure  the  line;  one  fleeing  from  justice;  one  going  upon  the 
train  to  assault  a  passenger,  commit  larceny  or  robbery,  or  for  inter- 
fering with  the  proi»er  regulations  of  the  company,  or  for  gambling 
in  any  form,  or  committing  any  crime;  nor  is  it  bound  to  carry  per- 
sons infected  with  contagious  diseases,  to  the  danger  of  other  pas- 
sengers. The  person  must  be  upon  lawful  and  legitimate  business. 
Ilenee  defendant  is  not  bound  to  earry  persons  who  travel  for  the 
purpose  of  gambling.  As  ganibling  is  a  crime  under  the  State  laws, 
it  is  not  even  necessary  for  the  company  to  have  a  rule  against  it. 
It  in  not  bound  to  furnish  faeilities  for  carrying  out  an  unlawftil 
Iiiirpo.se.  Necessary  force  m;iy  l)e  used  to  jirevent  gamlders  from 
entering  trains,  and  if  found  on  them  engaged  in  gambling,  and 
refuHing  tt>  desist,  they  may  be  forcibly  expelled. 

Whether  the  plaintiff  was  going  upf>n  tlie  train  for  ganiiiliiig  jnir- 
\>f>HfH,  or  wliether.  fronj  his  previous  cotirse,  the  defendant  might 
re.-i.Hon:il>ly  iiifer  that  .sueli  was  his  purpose,  is  a  rpiestion  r»f  fact  for 
the  jijry.  If  they  fnid  such  to  have  l)een  the  case,  they  cannot  give 
judgment  for  any  n«ore  tlian  the  actual  damage  sustained. 


PUBLIC   CALLING.  517 

After  the  ticket  is  purchased  and  paid  for,  the  railroad  company 
can  only  avoid  compliance  with  its  part  of  the  contract  by  the  exis- 
tence of  some  legal  cause  or  condition  which  will  excuse  it.  The 
company  should,  in  the  first  case,  refuse  to  sell  tickets  to  persons 
whom  it  desires  and  has  the  right  to  exclude  from  the  cars,  and 
should  exclude  them  if  they  attempt  to  enter  the  car  without  tickets. 

If  the  ticket  has  been  inadvertently  sold  to  such  person  and  the 
company  desires  to  rescind  the  contract  for  transportation,  it  should 
tender  the  return  of  the  money  paid  for  the  ticket.  If  it  does  not 
do  this,  plaintiff  may,  under  any  circumstances,  recover  the  amount 
of  his  actual  damage,  viz. :  what  he  paid  for  the  ticket,  and,  perhaps, 
necessary  expenses  of  his  detention. 

In  this  case  the  jury  rendered  a  verdict  for  actual  damages  ($1.74) 
and  costs,  the  company  not  having  tendered  the  money. 

Judgment  on  verdict. 


VINTON  V.   MIDDLESEX  E.    CO. 

11  Allen  (Mass.),  30i.     1865. 

Tort  against  a  street  railway  corporation  to  recover  damages  for 
the  act  of  one  of  their  conductors  in  expelling  the  plaintiff  from  a 
car  in  which  he  was  a  passenger. 

At  the  trial  in  the  Superior  Court,  before  Morton,  J.,  it  appeared 
that  the  plaintiff  was  a  passenger  in  one  of  the  defendant's  cars, 
and  was  expelled  by  the  conductor.  There  was  no  evidence  that  any 
rule  or  regulation  had  ever  been  adopted  by  the  defendants,  authoriz- 
ing their  conductors  to  expel  passengers  for  any  cause.  The  defend- 
ants introduced  evidence  tending  to  show  that  at  the  time  of  the 
expulsion  the  plaintiff  was  intoxicated,  and  used  loud,  boisterous, 
profane  and  indecent  language  towards  the  conductor  and  attempted 
to  strike  him,  and  that  he  was  therefore  expelled.  But  the  evi- 
dence on  this  point  was  conflicting.  There  were  four  women  in  the 
car  as  passengers. 

The  defendants  requested  the  court  to  instruct  the  jury,  amongst 
other  things,  as  follows:  ''If  the  jury  find  that  the  plaintiff  was  in 
the  defendants'  car  in  a  state  of  intoxication,  so  as  reasonably  to 
induce  the  conductor  to  believe  that  the  plaintiff  would  be  an  annoy- 
ance to  the  passengers,  or  if  the  plaintiff  so  conducted,  or  used  bois- 
terous, profane,  or  indecent  language,  naturally  calculated  to  annoy 
the  passengers,  and  persisted  in  so  doing  after  being  requested  to  be 
quiet,  the  conductor  would  be  justified  in  removing  him,  using  no 
more  v-iolence  than  was  necessary  to  affect  his  removal." 

The  judge  declined  so  to  rule,  and  instructed  the  jury  as  follows : 
**  If  the. plaintiff,  by  reason  of  intoxication  or  otherwise,  was,  in  act 


518  CAEKIERS    OF   TASSEXGERS. 

or  language,  offensive  or  annoying  to  the  passengers,  the  conductor 
had  a  right  to  remove  him,  using  reasonable  force.  If  the  conduc- 
tor, in  the  performance  of  his  service  as  conductor,  forcibly  removed 
the  plaintiff  without  justifiable  cause,  or  if.  having  justifiable  cause, 
he  used  unnecessary  and  unreasonable  violence,  in  kind  or  degree, 
in  removing  him,  the  defendants  are  liable."" 

The  jury  returned  a  verdict  for  the  plaintiff,  with  SlOOO  damages; 
and  the  defendants  alleged  exceptions. 

BnjELOW,  C.  J.  By  the  instructions  under  which  this  case  was 
submitted  to  the  jury,  in  connection  with  the  refusal  of  those  which 
were  asked  for  by  the  defendants,  we  are  led  to  infer  that  the  learned 
judge  who  presided  at  the  trial  was  of  opinion  that  the  defendants 
and  their  duly  authorized  agents  had  no  legal  power  or  authority  to 
exclude  or  expel  from  the  vehicles  under  their  charge  a  passenger 
whose  condition  and  conduct  were  such  as  to  give  a  reasonable  ground 
of  belief  that  his  presence  and  continuance  in  the  vehicle  would 
create  inconvenience  and  disturbance  and  cause  discomfort  and 
annoyance  to  other  passengers.  Such  certainly  were  the  result  and 
effect  of  the  rule  of  law  laid  down  for  the  guidance  of  the  jury  at 
the  trial.  We  are  constrained  to  say  that  we  know  of  no  warrant, 
either  in  principle  or  authority,  for  putting  any  such  limitation  on 
the  right  and  authority  of  the  defendants  as  common  carriers  of 
passengers,  or  of  their  servants  acting  within  the  scope  of  their 
employment. 

It  being  conceded,  as  it  must  be  under  adjudicated  cases,  that  the 
defendants,  as  incident  to  the  business  which  thej'  carried  on,  not 
only  had  the  power  but  were  bound  to  take  all  reasonable  and  proper 
means  to  insure  the  safety  and  provide  for  the  comfort  and  con- 
venience of  passengers,  it  follows  that  they  had  a  right,  in  the  exer- 
cise of  this  authority  and  duty,  to  repress  and  prohibit  all  disorderly 
conduct  in  their  vehicles,  and  to  expel  or  exclude  therefrom  any 
}i'r-<on  whose  conduct  or  condition  was  such  as  to  render  acts  of 
;:..  .ropriety,  rudeness,  indecency  or  disturbance,  eitlu-r  inevitable 
or  probable.  Certainly  the  conductor  in  charge  of  the  vehicle  was 
not  bound  to  wait  until  some  overt  act  of  violence,  profaneness  or 
other  misconduct  had  been  committed,  to  the  inconvenience  or 
'•e  of  other  passengers,  before  exercising  his  authority  to 
■  r  expel  the  offender.  The  right  and  power  of  tlie  defend- 
ants and  their  servants  to  prevent  the  occurrence  of  im])roper  and 
disorderly  conduct  in  a  public  veliicle  is  quite  as  essential  and  impor- 
tant as  the  authority  to  stop  a  disturbance  or  repress  acts  of  violence 
"les  of  decorum  after  they  have  been  committed,  and  the 
of  annoyance  and  disturbance  have  been  done. 

Indeed,  if  the  rule  laid  down  at  the  trial  be  correct,  then  it  would 
follow  that  passengers  in  pul)lic  vehicles  must  be  subjected  to  a  cer- 
U.u  amount  or  degree  of  discomfort  or  insult  from  evil  disposed 
jxTsons  before  the  right  to  expel  tliem  would  accrue  to  a  carrier  or 


PUBLIC   CALLING.  519 

his  servant.  There  wouhl  be  no  authority  to  restrain  or  prevent 
profaneness,  indecency,  or  other  breaches  of  decorum  in  speech  or 
behavior,  until  it  had  continued  long  enough  to  become  manifest  to 
the  eyes  or  ears  of  other  passengers.  It  is  obvious  that  any  such 
restriction  on  the  operation  of  the  rule  of  law  would  greatly  diminish 
its  practical  value.  Nor  can  we  see  that  there  is  any  good  reason 
for  giving  so  narrow  a  scope  to  the  authority  of  carriers  of  passen- 
gers and  their  agents  as  was  indicated  in  the  rulings  at  the  trial. 
The  only  objection  suggested  is,  that  it  is  liable  to  abuse  and  may 
become  the  instrument  of  oppression.  But  the  same  is  true  of  many 
other  salutary  rules  of  law.  The  safeguard  against  an  unjust  or 
unauthorized  use  of  the  power  is  to  be  found  in  the  consideration 
that  it  can  never  be  properly  exercised  except  in  cases  where  it  can 
be  satisfactorily  proved  that  the  condition  or  conduct  of  a  person 
was  such  as  to  render  it  reasonably  certain  that  he  would  occasion 
discomfort  or  annoyance  to  other  passengers,  if  he  was  admitted 
into  a  public  vehicle  or  allowed  longer  to  remain  within  it. 

ExcejHions  sustained. 


JENCKS   V.    COLEMAN. 

2  Sumner  (U.  S.  C.  C),  221.     1835. 

Case  for  refusing  to  take  the  plaintiff  on  board  of  the  steamboat 
"Benjamin  Franklin"  (of  which  the  defendant  was  commander)  as 
a  passenger  from  Providence  to  Newport.  Plea,  the  general  issue. 
The  facts,  as  they  appeared  at  the  trial,  were  substantially  as  fol- 
lows :  That  the  plaintiff  was  the  agent  of  the  Tremont  line  of  stages, 
running  between  Providence  and  Boston;  that  his  object  was  to  take 
passage  in  the  boat  to  Newport,  and  then  go  on  board  the  steamboat 
"President,"  on  her  passage  from  New  York  to  Providence,  on 
the  next  morning,  for  the  purpose  of  soliciting  passengers  for  the 
Tremont  line  of  stages  for  Boston.  This  the  proprietors  of  the 
"President"  and  "Benjamin  Franklin"  had  prohibited,  and  had 
given  notice  that  they  would  not  permit  agents  of  that  line  of  stages 
to  take  passage  in  their  boats  for  that  purpose.  The  reason  assigned 
for  such  prohibition  was,  that  it  was  important  for  the  proprietors 
of  the  steamboats,  that  the  passengers  from  their  boats,  for  Boston, 
should  find,  at  all  times,  on  their  arrival  at  Providence,  an  imme- 
diate and  expeditious  passage  to  Boston.  To  insure  this  object,  the 
Citizens'  Coach  Company  had  contracted  with  the  steamboat  pro- 
prietors to  carry  all  the  passengers  who  wished  to  go,  in  good  car- 
riages, at  reasonable  expedition  and  prices;  and  the  commanders 
of  the  steamboats  were  to  receive  the  fare,  and  make  out  way-bills 
of  the  passengers,  for  the  Citizens'  Coach  Company.     This   they 


520  CARRIERS   OF   PASSENGERS. 

continued  to  perform.  Aud,  in  order  to  counteract  the  effect  of  this 
contract,  —  which  had  been  offered  the  Tremout  line,  and  declined, 

that  line  placed  an  agent  on  board  the  boats,  to  solicit  passengers 

for  their  coaches;  and,  on  being  complained  to  by  the  Citizens' 
Coach  Company,  the  proprietors  of  the  steamboats  interdicted  such 
agents  from  coming  on  board  their  boats.  And  in  this  instance 
refused  to  permit  the  plaintiff  to  take  passage  in  the  boat  for 
Newport,  though  he  tendered  the  customary  fare. 

Stoky,  Circuit  Justice  (charging  jury).  There  is  no  doubt  that 
this  steamboat  is  a  common  carrier  of  passengers  for  hire;  and, 
therefore,  the  defendant,  as  commander,  was  bound  to  take  the 
plaintiff  as  a  passenger  on  board,  if  he  had  suitable  accommoda- 
tions, and  there  was  no  reasonable  objection  to  the  character  or 
conduct  of  the  plaintiff.  The  question  then  really  resolves  itself 
into  the  mere  consideration,  whether  there  was,  in  the  present  case, 
upon  the  facts,  a  reasonable  ground  for  the  refusal.  The  right  of 
passengers  to  a  passage  on  board  of  a  steamboat  is  not  an  unlimited 
right.  But  it  is  subject  to  such  reasonable  regulations  as  the  pro- 
prietors may  prescribe,  for  the  due  accommodation  of  passengers 
and  for  the  due  arrangements  of  their  business.  The  proprietors 
have  not  only  this  right,  but  the  farther  right  to  consult  and  pro- 
vide for  their  own  interests  in  the  management  of  such  boats,  as  a 
common  incident  to  their  riglit  of  property.  They  are  not  bound  to 
admit  passengers  on  board,  who  refuse  to  obey  the  reasonable  regu- 
lations of  the  boat,  or  who  are  guilty  of  gross  and  vulgar  habits  of 
conduct;  or  who  make  disturbances  on  board;  or  whose  characters 
are  doubtful,  or  dissolute,  or  suspicious;  and,  a  fortiori,  whose  char- 
acters are  unequivocally  bad.  Nor  are  they  bound  to  admit  pas- 
sengers on  board  whose  object  is  to  interfere  witli  the  interest  or 
patronage  of  the  proprietors,  so  as  to  make  the  business  less  lucra- 
tive  to  them.  While,  therefore,  I  agree  that  steamboat  proprietors 
holding  themselves  out  as  common  carriers  are  bound  to  receive 
passengers  on  board  under  ordinary  circumstances,  I  at  the  same 
time  insist  that  they  may  refuse  to  receive  them,  if  there  be  a  rea- 
sonable objection.  And  as  passengers  are  bound  to  obey  the  orders 
and  regulations  of  the  i)roprietors,  unless  they  are  oppressive  and 
grossly  unreasonable,  whoever  goes  on  board,  under  ordinary  cir- 
cumstances, imijliedly  contracts  to  oliey  such  regulations;  and  may 
justly  be  refu.sed  a  passage,  if  he  wilfully  resists  or  violates  them. 
Now,  wl»at  are  the  circumstances  of  the  present  case?  Jencks, 
'   'tiff,  was  at  the  time  the  known  agent  of  the  Tremont  line 

'i;u>h('s.  The  proprietors  of  the  "I5enjamin  Franklin  "  had, 
a»  lie  well  knew,  entered  into  a  contract  with  the  owners  of  anotlier 
Tin*'  (tlie  Citizens'  Stage  Coach  Company)  to  bring  passengers  from 
I'.' --'ton  to  Providence,   and  to  carry   passengers  from   Trovidence 

1,  in  eonnection  witli  and  to  meet  the  steambn;its  i)lying 
1  \'c'W  York  and  I'rovidonco,  and  belonging  to  the  ])roprietors 


PUBLIC   CALLING.  521 

of  the  "Franklin."  Such  a  contract  was  important,  if  not  indispen- 
sable, to  secure  uniformity,  punctuality,  and  certainty  in  the  car- 
riage of  passengers  on  both  routes,  and  might  be  material  to  the 
interests  of  the  proprietors  of  those  steamboats.  Jencks  had  been 
in  the  habit  of  coming  on  board  these  steamboats  at  Providence,  and 
going  therein  to  Xewport;  and  commonly  of  coming  on  board  at 
Kewport,  and  going  to  Providence,  avowedly  for  the  purpose  of 
soliciting  passengers  for  the  Tremont  line,  and  thus  interfering  with 
the  patronage  intended  to  be  secured  to  the  Citizens'  line  by  the 
arrangements  made  with  the  steamboat  proprietors.  He  had  the 
fullest  notice  that  the  steamboat  proprietors  had  forbidden  any  per- 
son to  come  on  board  for  such  purposes,  as  incompatible  with  their 
interests.  At  the  time  when  he  came  on  board,  as  in  the  declara- 
tion mentioned,  there  was  every  reason  to  presume  that  he  was  on 
board  for  his  ordinary  purposes  as  agent.  It  has  been  said  that  the 
proprietors  had  no  right  to  inquire  into  his  intent  or  motives.  I 
cannot  admit  that  point.  I  think  that  the  proprietors  had  a  right 
to  inquire  into  such  intent  and  motives;  and  to  act  upon  the  reason- 
able presumptions,  which  arose  in  regard  to  them.  Suppose  a 
known  or  suspected  thief  were  to  come  on  board ;  would  they  not 
have  a  right  to  refuse  him  a  passage?  Might  they  not  justly  act 
upon  the  presumption  that  his  object  was  unlawful?  Suppose  a  per- 
son were  to  come  on  board  who  was  habitually  drunk,  and  gross 
in  his  behavior,  and  obscene  in  his  language,  so  as  to  be  a  public 
annoyance;  might  not  the  proprietors  refuse  to  allow  him  a  pas- 
sage? I  think  they  might,  upon  the  just  presumption  of  what  his 
conduct  would  be. 

It  has  been  said  by  the  learned  counsel  for  the  plaintiff  that 
Jencks  was  going  from  Providence  to  Newport,  and  not  coming  back; 
and  that  in  going  down  there  would,  from  the  very  nature  of  the 
object,  be  no  solicitation  of  passengers.  That  does  not  necessarily 
follow;  for  he  might  be  engaged  in  making  preliminary  engage- 
ments for  the  return  of  some  of  them  back  again.  But,  supposing 
there  were  no  such  solicitations,  actual  or  intended,  I  do  not  think 
the  case  is  essentially  changed.  I  think  that  the  proprietors  of  the 
steamboats  were  not  bound  to  take  a  passenger  from  Providence  to 
Newport  whose  object  was,  as  a  stationed  agent  of  the  Tremont  line, 
thereby  to  acquire  facilities,  to  enable  him  successfully  to  interfere 
with  the  interests  of  these  proprietors,  or  to  do  them  an  injury  in 
their  business.  Let  us  take  the  case  of  a  ferryman.  Is  he  bound  to 
carry  a  passenger  across  a  ferry  whose  object  is  to  commit  a  trespass 
upon  his  lands?  A  case  still  more  strongly  in  point,  and  which,  in 
my  judgment,  completely  meets  the  present,  is  that  of  an  innkeeper. 
Suppose  passengers  are  accustomed  to  breakfast,  or  dine,  or  sup  at 
his  house;  and  an  agent  is  employed  by  a  rival  house,  at  the  dis- 
tance of  a  few  miles,  to  decoy  the  passengers  away,  the  moment 
they  arrive  at  the  inn ;  is  the  innkeeper  bound  to  entertain  and  lodge 


522  CARRIERS   OF   PASSENGERS. 

such  agent,  and  thereby  enable  him  to  accomplish  the  very  objects 
of  his  mission,  to  the  injury  or  ruin  of  his  own  interests?  I  think 
not.  It  has  been  also  said  that  the  steamboat  proprietors  are  bound 
to  carry  passengers  only  between  Providence  and  New  York,  and 
not  to  transi)ort  them  to  Boston.  Be  it  so,  that  they  are  not  abso- 
lutely bound.  Yet  they  have  a  right  to  make  a  contract  for  this 
latter  purpose,  if  they  choose;  and  especially  if  it  will  facilitate 
the  transportation  of  passengers,  and  increase  the  patronage  of  their 
steamboats.  I  do  not  say  that  they  have  a  right  to  act  oppressively 
in  such  cases.  But,  certainly,  they  may  in  good  faith  make  such 
contracts  to  promote  their  own  as  well  as  the  ])ublic  interests. 

The  only  real  question,  then,  in  the  present  case,  is  whetheT  the 
conduct  of  the  steamboat  proprietors  has  been  reasonable  and  hoi^a 
fide.  They  have  entered  into  a  contract  with  the  Citizens'  line  of 
coaches,  to  carry  all  tlie  passengers  to  and  from  Boston.  Is  this 
contract  reasonable  in  itself;  and  not  designed  to  create  an  oppres- 
sive and  mischievous  monopoly?  There  is  no  pretence  to  say  that 
any  passenger  in  the  steamboat  is  bound  to  go  to  or  from  Boston  in 
the  Citizens'  line.  He  may  act  as  he  pleases.  It  has  been  said  by 
the  learned  counsel  for  the  plaintiff  that  free  competition  is  best  for 
the  public.  But  that  is  not  the  question  here.  j\Ien  may  reason- 
ably differ  from  each  other  on  that  point.  Neither  is  the  question 
here  whether  the  contract  with  the  Citizens'  line  was  indispensable 
or  absolutely  necessary  in  order  to  insure  the  carriage  of  passengers 
to  and  from  Boston.  But  the  true  question  is,  whether  the  contract 
is  reasonable  and  proper  in  itself,  and  entered  into  with  good  faith, 
and  not  for  the  purpose  of  an  oppressive  monopoly.  If  the  jury  find 
the  contract  to  be  reasonable  and  proper  in  itself,  and  not  oppres- 
sive, and  tliey  believe  tlie  purpose  of  Jencks  in  going  on  board  was 
to  accomplish  the  objects  of  his  agency,  and  in  violation  of  the  reas- 
onable regulations  of  the  steamboat  proprietors,  then  their  verdict 
ought  to  be  for  the  defendant;  and  otherwise,  to  be  for  the  plaintiff. 


OLD   COLONY   R.    CO.    v.    TRIPP. 

117  Mass.  35.     1888. 

Tort  for  obstructing  the  station  grounds  of  the  plaintiff  at  Brock- 
ton. At  the  trial  in  the  Superior  Court,  before  Thompsox,  J.,  evi- 
dence was  introduced  tending  to  ]>rove  the  following  facts. 

The  plaintiff  is  a  railroad  corporation,  witli  all  the  jiowers  and 
subject  to  all  the  duties  of  such  corporations  in  this  Commonwealth, 
and  Pffockton  is  one  of  the  largest  stations  u])on  its  road.  It  had 
been  the  i*ractice  of  the  defendant  and  other  owners  of  job  wagons. 


PUBLIC   CALLING.  523 

for  several  years  prior  to  August  1,  1886,  to  go  to  the  Brockton 
station  to  wait  for  trains,  and  to  ascertain  if  the  passengers  had  any 
baggage  or  other  merchandise  for  them  to  carry.  The  plaintiff,  on 
or  about  August,  1886,  made  a  contract  with  tlie  firm  of  Porter  and 
Sons,  of  Brockton,  to  provide  means  for  carrying  all  baggage  and 
merchandise  brought  by  incoming  passengers  to  such  places  in  the 
city  as  they  might  desire,  at  their  expense.  Afterwards,  the  plain- 
tiff, through  its  station  master  at  Brockton,  and  by  the  order  of  its 
general  manager,  and  also  of  its  division  superintendent,  but  not 
by  any  by-law  or  vote  of  its  directors  or  stockholders,  notified  the 
defendant  and  all  other  owners  of  job  wagons  not  to  come  upon  the 
plaintiff's  grounds  at  Brockton  to  solicit  baggage  or  merchandise 
from  incoming  passengers,  and  informed  them  of  the  contract  made 
with  Porter  and  Sons,  but  allowed  them,  however,  to  come  to  the 
station  to  deliver  such  bagagge  and  merchandise,  and  to  take  away 
such  as  they  might  have  previous  orders  for.  The  defendant  after 
receiving  this  notice  continued  to  come  upon  the  premises,  and  to 
solicit  baggage  and  merchandise  upon  the  platform  of  the  station 
from  passengers  upon  the  arrival  of  trains,  and  refused  to  depart 
therefrom  when  requested  by  the  plaintiff's  agents,  though  not  there 
to  deliver  baggage  or  merchandise  for  outgoing  passengers,  or  to 
take  it  away  upon  orders  received  elsewhere. 

Upon  these  facts,  the  judge  ordered  a  verdict  for  the  plaintiff,  and 
reported  the  case  for  the  determination  of  this  court.  If  the  verdict 
was  correct,  judgment  was  to  be  rendered  thereon;  otherwise,  judg- 
ment was  to  be  entered  for  the  defendant. 

W.  Allen,  J.  Whatever  implied  license  the  defendant  may  have 
had  to  enter  the  plaintiff's  close  had  been  revoked  by  the  regula- 
tions made  by  the  plaintiff  for  the  management  of  its  business  and 
the  use  of  its  property  in  its  business.  The  defendant  entered  under 
a  claim  of  right,  and  can  justify  his  entry  only  by  showing  a  right 
superior  to  that  of  the  plaintiff.  The  plaintiff  has  all  the  rights  of 
an  owner  in  possession,  except  such  as  are  inconsistent  with  the 
public  use  for  which  it  holds  its  franchise ;  that  is,  with  its  duties 
as  a  common  carrier  of  persons  and  merchandise.  As  concerns  the 
case  at  bar,  the  plaintiff  is  obliged  to  be  a  common  carrier  of  pas- 
sengers. It  is  its  duty  to  furnish  reasonable  facilities  and  accom- 
modations for  the  use  of  all  persons  who  seek  for  transporation  over 
its  road.  It  provided  its  depot  for  the  use  of  persons  who  were 
transported  on  its  cars  to  or  from  the  station,  and  holds  it  for  that 
use,  and  it  has  no  right  to  exclude  from  it  persons  seeking  access 
to  it  for  the  use  for  which  it  was  intended  and  is  maintained.  It 
can  subject  the  use  to  rules  and  regulations,  but  by  statute,  if  not 
by  common  law,  the  regulations  must  be  such  as  to  secure  reason- 
able and  equal  use  of  the  premises  to  all  having  such  right  to  use 
them.  See  Pub.  Sts.  c.  112,  §  188.  Fitchburg  Eailroad  v.  Gage, 
12  Gray,  393.     Spofford  v.  Boston  &  Maine  Railroad,  128  Mass.  326. 


524  CARRIERS   OF   PASSENGERS. 

The  station  was  a  passenger  station.  Passengers  taking  and  leav- 
ing the  cars  at  the  station,  and  persons  setting  down  passengers 
©redelivering  merchandise  or  baggage  for  transportation  from  the 
station,  or  taking  up  passengers  or  receiving  merchandise  that  had 
been  transported  to-  the  station,  had  a  right  to  use  the  station  build- 
ings and  grounds,  superior  to  the  right  of  the  plaintiff  to  exclusive 
occupancy.  All  such  persons  had  business  with  the  plaintiff,  which 
it  was  bound  to  attend  to  in  the  place  and  manner  which  it  had  pro- 
vided for  all  who  had  like  business  with  it. 

The  defendant  was  allowed  to  use  the  depot  for  any  business  that 
he  had  with  the  plaintiff.  But  he  had  no  business  to  transact  with 
the  plaintiff.  He  had  no  merchandise  or  baggage  to  deliver  to  the 
plaintiff,  or  to  receive  from  it.  His  purpose  was  to  use  the  depot 
as  a  place  for  soliciting  contracts  with  incoming  passengers  for  the 
transportation  of  their  baggage.  The  railroad  company  may  be 
under  obligation  to  the  passenger  to  see  that  he  has  reasonable  facil- 
ities for  procuring  transportation  for  himself  and  his  baggage  from 
the  station  where  his  transit  ends.  What  conveniences  shall  be 
furnished  to  passengers  within  the  station  for  that  i)urpose  is  a 
matter  wholly  between  them  and  the  company.  The  defendant  is 
a  stranger  both  to  the  plaintiff  and  to  its  passengers,  and  can  claim 
no  rights  against  the  plaintiff  to  the  use  of  its  station,  either  in  its 
own  right  or  in  the  right  of  passengers.  The  fact  that  he  is  willing 
to  assume  relations  with  any  passenger  which  wull  give  him  rela- 
tions with  the  plaintiff  involving  the  right  to  use  the  depot,  does 
not  establisli  such  relations  or  such  right;  and  the  right  of  passen- 
gers to  be  solicited  by  drivers  of  hacks  and  job  wagons  is  not  such 
as  to  give  to  all  such  drivers  a  right  to  occupy  the  platforms  and 
depots  of  railroads.  If  such  right  exists,  it  exists,  under  the  statute, 
equally  for  all,  and  railroad  companies  are  obliged  to  admit  to  their 
depots,  not  only  jiersons  having  business  there  to  deliver  or  receive 
passengers  or  merchandise,  but'  all  persons  seeking  such  l)usiness, 
and  to  furnish  reasonable  and  equal  facilities  and  conveniences  for 
all  such. 

Tlje  only  case  we  have  seen  which  seems  to  U'lul  any  countenance 
to  the  position  that  a  railroad  company  has  no  right  to  exclude  per- 
sons from  occupying  its  depots  for   the  purpose  of  soliciting  the 
patronage  of   i)assengers,  is  Markham  v.   Brown,  8  N.  H.  523,  in 
which  it  was  held  that  an  inn-holder  had  no  right  to  exclude  from 
his  inn  a  stage-driver  who  entered  it  to  solicit  guests  to  ])atronize 
his  stage,  in  op])OHition  to  a  driver  of  a  rival  line,  who  had  been 
admitted  for  a  like  purpose.     It  was  said  to  rest  upon  the  right  of 
the  passengers,  rather  than  that  of  the  driver.     However  it  may  be 
"  ''    :       ■    ;  at  an  inn,  we  do  not  think  that  passengers  in  a  railroad 
ich  possession  of  or  riglit  in  the  promises  as  will  give 
tI't.s  <jf  baggage,  soliciting  their  j)atronag(',  an  implied  license 
.t.r-r.  irrevociilile   by  the   railroad  company.     l':inir\    >•.  Oyster 


PUBLIC    CALLING.  525 

Bay  &  Huntington  Steamboat  Co.,  67  X.  Y.  301,  and  Jencks  v. 
Coleman,  2  Sumner,  221  [519]  are  cases  directly  in  point.  See  also 
Commonwealth  v.  Power,  7  Met.  596,  and  Harris  v.  Stevens,  31 
Vt.  79. 

It  is  argued  that  the  statute  gave  to  the  defendant  the  same  right 
to  enter  upon  and  use  the  buildings  and  platforms  of  the  plaintiff, 
which  the  plaintiff  gave  to  Porter  and  Sons.  The  plaintiff  made  a 
contract  with  Porter  and  Sons  to  do  all  the  service  required  by 
incoming  passengers  in  receiving  from  the  plaintiff  and  delivering 
in  the  town  baggage  and  merchandise  brought  by  them,  and  pro- 
hibited the  defendant  and  all  other  owners  of  job  wagons  from  enter- 
ing the  station  for  the  purpose  of  soliciting  from  passengers  the  car- 
riage of  their  baggage  and  merchandise,  but  allowed  them  to  enter 
for  the  purpose  of  delivering  baggage  or  merchandise,  or  of  receiv- 
ing any  for  which  they  had  orders.  Section  188  of  the  Pub.  Sts.  c. 
112,  is  in  these  words:  "Every  railroad  corporation  shall  give  to  all 
persons  or  companies  reasonable  and  equal  terms,  facilities,  and 
accommodations  for  the  transportation  of  themselves,  their  agents 
and  servants,  and  of  any  merchandise  and  other  property  upon  its 
railroad,  and  for  the  use  of  its  depot  and  other  buildings  and 
grounds ;  and,  at  any  point  where  its  railroad  connects  with  another 
railroad,  reasonable  and  equal  terms  and  facilities  of  interchange." 
A  penalty  is  prescribed  in  §  191  for  violations  of  the  statute. 

The  statute,  in  providing  that  a  railroad  corporation  shall  give 
to  all  persons  equal  facilities  for  the  use  of  its  depots,  obviously 
means  a  use  of  right.  It  does  not  intend  to  prescribe  who  shall 
have  the  use  of  the  depot,  but  to  provide  that  all  who  have  the  right 
to  use  it  shall  be  furnished  by  the  railroad  company  with  equal  cou' 
veniences.  The  statute  applies  only  to  relations  between  railroads 
as  common  carriers  and  their  patrons.  It  does  not  enact  that  a 
license  given  by  a  railroad  company  to  a  stranger  shall  be  a  license 
to  all  the  world.  If  a  railroad  company  allows  a  person  to  sell 
refreshments  or  newspapers  in  its  depots,  or  to  cultivate  flowers  on 
its  station  grounds,  the  statute  does  not  extend  the  same  right  to  all 
persons.  If  a  railroad  company,  for  the  convenience  of  its  passen- 
gers, allows  a  baggage  expressman  to  travel  in  its  cars  to  solicit  the 
carriage  of  the  baggage  of  passengers,  or  to  keep  a  stand  in  its 
depots  for  receiving  orders  from  passengers,  the  statute  does  not 
require  it  to  furnish  equal  facilities  and  conveniences  to  all  persons. 
The  fact  that  the  defendant,  as  the  owner  of  a  job  wagon,  is  a  com- 
mon carrier,  gives  him  no  special  right  under  the  statute;  it  only 
shows  that  it  is  possible  for  him  to  perform  for  passengers  the  ser- 
vice which  he  wishes  to  solicit  of  them. 

The  English  railway  and  canal  traffic  act,  17  &  18  Vict.  c.  31, 
requires  every  railway  and  canal  company  to  afford  all  reasonable 
facilities  for  traffic,  and  provides  that  "no  such  company  shall  make 
or  give  any  undue  or  unreasonable  preference  or  advantage  to  or  in 


526  CARRIERS   OF   PASSENGERS. 

favor  of  any  particular  person  or  company,  or  any  particular  descrip- 
tion of  traffic,  in  any  respect  whatsoever."  Marriott  v.  London  & 
Southwestern  Railway,  1  C.  B.  (X.  S.)  499,  was  under  this  statute. 
The  complaint  was  that  the  omnibus  of  Marriott,  in  which  he 
brought  passengers  to  the  railroad,  was  excluded  by  the  railway 
company  from  its  station  grounds,  when  other  omnibuses  which 
brought  passengers  were  admitted.  An  injunction  was  ordered. 
Beadell  v.  Eastern  Counties  Eailway,  2  C.  B.  (X.  S.)  509,  was  a 
complaint  under  the  statute  that  the  railway  company  refused  to 
allow  the  complainant  to  ply  for  passengers  at  its  station,  it  hav- 
ing granted  the  exclusive  right  of  taking  up  passengers  within  the 
station  to  one  Clark.  The  respondent  allowed  the  complainant's 
cubs  to  enter  the  station  for  the  pur])0se  of  putting  down  i)assengers, 
and  then  required  him  to  leave  the  yard.  An  injunction  was  refused. 
One  ground  on  which  the  case  was  distinguished  from  Mariott's 
was,  that  the  complainant  was  allowed  to  enter  the  yard  to  set  down 
passengers,  and  was  only  prohibited  from  remaining  to  ply  for  pas- 
sengers. See  also  Painter  v.  London,  l>righton,  &  South  Coast  Kail- 
way,  2C.  B.  (X.  S.)  702;  Barker  v.  Midland  Kail  way,  18  C.  B.  46. 
Besides  Marriott's  case,  ubi  supra,  Palmer  i'.  London,  Brighton,  & 
South  Coast  Railway,  L.  R.  G  C.  P.  194,  and  Parkinson  v.  Great 
"Western  Railway,  L.  R.  6  C.  P.  554,  are  cases  in  which  injunctions 
were  granted  under  the  statute;  in  the  former  case,  for  refusing  to 
admit  vans  containing  goods  to  the  station  yard  for  delivery  to  the 
railway  company  for  transportation  by  it;  in  the  latter  case  for 
refusing  to  deliver  at  the  station,  to  a  carrier  authorized  to  receive 
them,  goods  wliicli  had  been  transported  on  the  railroad. 

We  have  not  been  referred  to  any  decision  or  dictum  in  England 
or  in  this  country,  that  a  common  carrier  of  passengers  and  their 
baggage  to  and  from  a  railroad  station  has  any  right,  without  the 
consent  of  the  railroad  company,  to  use  the  grounds,  buildings,  and 
platforms  of  the  station  for  the  purpose  of  soliciting  the  patronage 
of  passengers,  or  that  a  regulation  of  the  company  which  allows 
such  use  by  particular  persons,  and  denies  it  to  others,  violates  any 
right  of  the  latter.  Cases  at  common  law  or  under  statutes  to  deter- 
mine whether  railroad  companies  in  ])articular  instances  gave  equal 
terms  and  facilities  to  dilferent  parties  to  whom  they  furnished 
transportation,  and  with  wliora  they  dealt  as  common  carriers,  have 
no  bearing  on  the  case  at  bar.  The  defendant  in  his  business  of 
solicitor  of  the  jiatronage  of  passengers  held  no  relations  with  the 
plaintiff  as  a  common  carrier,  and  had  no  right  to  use  its  station 
grounds  and  buildings.  A  niajcjrity  of  tlie  court  are  of  tlie  ojiinion 
that  there  should  bo  Judo  men/  on  the  rmiirt. 

Fir.U),  J.  The  Chief  Justice,  Mr.  Justice  Devens,  and  mys(  If 
■  '  '  it  our  statutes  shoiild  receive  a  different  cojistrucLion  from 
'  :i  to  them  by  a  majority  of  the  court.     Tim  Pub.  Sts.  c. 


PUBLIC   CALLING.  527 

112,  sec.  188,  provide  "  that  every  railroad  corporation  shall  give  to 
all  persons  or  companies  reasonable  and  equal  terms,  facilities,  and 
accommodations  for  the  transportation  of  themselves,  their  agents 
and  servants,  and  of  any  merchandise  and  other  property  upon  its 
railroad,  and  for  the  use  of  its  depot  and  other  buildings  and  grounds; 
and,  at  any  point  where  its  railroad  connects  with  another  railroad, 
reasonable  and  equal  terms  and  facilities  of  interchange."  Section 
189  of  the  same  chapter  provides  that  "  every  railroad  corporation 
shall  promptly  forward  merchandise  consigned  or  directed  to  be  sent 
over  another  road  connecting  with  its  road,  according  to  the  direc- 
tions contained  thereon  or  accompanying  the  same,  and  shall  not 
receive  and  forward  over  its  road  merchandise  consigned,  ordered,  or 
expressly  directed  to  be  received  and  forwarded  by  a  different  route." 
By  section  191,  a  railroad  corporation  which  violates  these  pro- 
visions is  liable  for  all  damages  sustained  by  reason  of  such  viola- 
tion, and  to  a  penalty  of  two  hundred  dollars,  which  may  be 
recovered  to  the  use  of  the  party  aggrieved,  or  to  the  use  of  the 
Commonwealth.  These  sections  are  taken  from  the  St.  of  1874,  c. 
.372,  sees.  138,  139,  141,  and  the  St.  of  1880,  c.  258. 

Section  188  of  the  Pub.  Sts.  c.  112  was  first  enacted  by  the  St. 
of  1867,  c.  339.  This  section  does  not,  in  terms,  require  that  the 
persons  or  companies  to  whom  the  corporation  is  required  to  give 
"  reasonable  and  equal  terms,  facilities,  and  accommodations  "  shall 
own  the  merchandise  which  is  transported,  nor  is  it  limited  to  the 
delivery  of  merchandise  to  be  transported  by  the  railroad  corjDora- 
tion.  In  the  clause  relating  to  connecting  railroads,  the  section 
plainly  means  that  railroads  shall  give  to  other  railroads  connecting 
with  them,  and  shall  receive  with  such  other  railroads,  reasonable 
and  equal  terms  and  facilities  of  interchange  both  in  delivering  pas- 
sengers and  merchandise  to,  and  in  receiving  them  from,  the  rail- 
roads with  which  they  connect.  The  provision  that  every  railroad 
corporation  shall  give  to  all  persons  or  companies  reasonable  and 
equal  terms,  facilities,  and  accommodations  for  the  use  of  the  depot 
and  other  buildings  and  grounds,  must  include  the  use  of  the  depot 
and  other  buildings  and  grounds  for  receiving  passengers  and  mer- 
chandise from  a  railroad  at  the  terminus  where  the  transportation 
on  the  railroad  ends,  as  well  as  for  delivering  passengers  and  mer- 
chandise to  a  railroad  at  the  terminus  where  such  transportation 
begins. 

As  the  last  clause  of  the  section  makes  provision  for  carriers  con- 
necting by  railroad,  we  think  that  the  preceding  clause  was  intended 
to  make  provision  for  other  connecting  carriers,  and  to  include  pub- 
lic or  common  carriers,  as  well  as  private  carriers  actually  employed 
by  passengers  or  by  the  owners  or  consignees  of  merchandise.  Stages 
and  expresses  are  the  only  common  carriers  of  passengers  and  of 
merchandise  to  and  from  many  places  in  the  Commonwealth,  and  in 
connection  with  railroads  often  form  a  continuous  line  of  trans- 


528  CARRIERS   OF   PASSENGERS. 

portation.  The  statute,  we  think,  was  intended  to  prevent  unjust 
discrimination  by  a  railroad  corporation  between  common  carriers 
connecting  with  it  in  any  manner,  and  to  require  that  the  railroad 
corporation  should  furnish  to  such  carriers  reasonable  and  equal 
terms,  facilities,  and  accommodations  in  the  use  of  its  depot  and 
other  buildings  and  grounds  for  the  interchange  of  traffic. 

A  railroad  corporation  can  make  reasonable  rules  and  regulations 
concerning  the  use  of  its  depot  and  other  buildings  and  grounds, 
and  can  exclude  all  persons  therefrom  who  have  no  business  with 
the  railroad,  and  it  can  probably  prohibit  all  persons  from  soliciting 
business  for  themselves  on  its  premises.  Whatever  may  be  its  rights 
to  exclude  all  common  carriers  of  passengers  or  of  merchandise  from 
its  depots  and  grounds  who  have  not  an  order  to  enter,  given  by 
persons  who  are  or  who  intend  to  become  passengers,  or  who  own 
or  are  entitled  to  the  possession  of  merchandise  which  has  been  or 
is  to  be  transported,  it  cannot  arbitrarily  admit  to  its  depot  and 
grounds  one  common  carrier  and  exclude  all  others.  Tlie  effect  of 
such  a  regulation  would  be  to  enable  a  railroad  corporation  largely 
to  control  the  transportation  of  passengers  and  merchandise  beyond 
its  own  line,  and  to  establish  a  monopoly  not  granted  by  its  charter, 
which  might  be  solely  for  its  own  benefit,  and  not  for  the  benefit  of 
the  public.  Such  a  regulation  does  not  give  "to  all  persons  or  com- 
panies reasonable  and  equal  terms,  facilities  and  accommodations 
.  .  .  for  the  use  of  its  depot  and  other  buildings  and  grounds,"  in 
the  transportation  of  persons  and  property.  See  Parkinson  v.  Great 
Western  Railway,  L.  li.  6  C.  V.  554;  Palmer  v.  London,  Brighton 
«&  South  Coast  Railway,  L.  R.  6  C.  P.  194;  New  England  Express 
Company  v.  Maine  Central  Railroad,  57  Maine,  188. 


.3.  WHO  DEE:\n:T)  passengers. 

a.    Accejitance. 

BRIEX    r.    P.EXNETT. 

Before  Lord  -M)inger,  C.  B.  8  Car.  \  I'.  721.     1839. 

Ca.hk. — The  declaration  stated  that  the  defendant  was  tlio  jiro- 
priftor  of  an  omnibus  for  carrying  passengers  from  I  lamuK  rsmith 
and  divers  other  places  to  Londnn,  and  being  such  owiu  r,  the  phiin- 
tifl  at  the  request  of  the  defendant,  "agreed  to  become  and  became 
I  said  omnibus  to  be  safely  and  securely  conveyed" 

'  li  to  London  for  reasonable  fare  and  reward  to  the 


WHO    DEEMED    PASSENGERS.  529 

defendant,  "and  the  defendant  then  received  the  plaintiff  as  such 
passenger  as  aforesaid,  and  thereupon  it  became  and  was  the  duty 
of  the  defendant  to  use  due  and  proper  care  that  the  plaintiff  should 
be  safely  and  securely  carried  and  conveyed  by  the  said  omnibus," 
yet  the  defendant,  not  regarding  his  duty,  did  not  use  proper  care, 
&c.,  but  on  the  contrary,  neglected  it,  so  that  by  the  negligence  of 
the  defendant  and  his  servant  in  that  behalf,  "  the  plaintiff,  whilst 
such  passenger  as  aforesaid,"  fell  from  the  said  omnibus  upon  the 
ground,  and  was  greatly  hurt,  &c.  Pleas,  1st,  not  guilty;  2d,  deny- 
ing that  the  defendant  was  the  proprietor  of  the  omnibus;  3d,  ''that 
the  plaintiff  did  not  become  a  passenger  by  the  said  omnibus,  nor 
did  the  defendant  receive  him,  the  plaintiff,  as  such  passenger  in 
manner  and  form  as  in  the  said  declaration  is  alleged  "  (concluding 
to  the  country). 

It  appeared  that  the  defendant's  omnibus  was  passing  on  its  jour- 
ne}^  when  the  plaintiff,  who  was  a  gentleman  considerably  advanced 
in  years,  held  up  his  finger  to  cause  the  driver  of  the  omnibus  to 
stop  and  take  him  up,  and  that  upon  his  doing  so  the  driver  pulled 
up,  and  the  conductor  opened  the  omnibus  door;  and  that  just  as 
the  plaintiff  was  putting  his  foot  on  the  step  of  the  omnibus,  the 
driver,  supposing  that  the  plaintiff  had  got  into  it.  drove  on,  and 
the  plaintiff  fell  on  his  face  on  the  ground,  and  was  much  hurt. 

Piatt,  for  the  defendant.  I  submit  that  the  plaintiff  never  was 
a  passenger. 

Lord  Abinger,  C.  B.  I  think  that  the  stopping  of  the  omnibus 
implies  a  consent  to  take  the  plaintiff  as  a  passenger,  and  that  it  is 
evidence  to  go  to  the  jury.  " 

Verdict  for  the  plaintiff — Damages  £5. 


ALLENDER  v.  CHICAGO,  ETC.,  R.    CO. 
37  Iowa,  264.     1873. 

AcTioi^  to  recover  damages  for  injuries  received  by  cars  on 
defendant's  road. 

On  the  5th  day  of  iSTovember,  1870,  the  defendant  operated  a  rail- 
road in  Jefferson  county,  and  had  a  depot  at  Fairiield,  which  was 
then  the  terminal  station  of  the  road.  About  half -past  four  o'clock 
in  the  afternoon  of  that  day  plaintiff,  a  resident  of  Jefferson  county, 
eighteen  years  of  age,  and  who  had  never  ridden  on  the  cars,  applied 
at  the  depot  of  defendant,  in  Fairfield,  for  passage  to  Acheson,  the 
next  station  on  the  road. 

She  was  informed  by  the  ticket  agent  that  the  regular  train  had 
gone,  but  that  a  freight  train  would  leave  about  5  o'clock,  which 
would  have  a  car  on  which  she  could  ride.     She  informed  the  agent 

34 


530  CARRIEES   OF   PASSENGERS. 

that  she  would  rather  go  on  that  than  wait  for  the  passenger  train, 
and  then  went  to  the  house  of  an  acquaintance  near  the  depot. 

In  a  short  time  she  returned,  went  to  the  door  of  the  ticket  office, 
asked  for  a  ticket,  and  inquired  how  long  it  would  be  before  she 
could  go.  The  agent  informed  her  that  the  train  would  start  in 
about  twenty  minutes;  told  her  that  she  could  pay  her  fare  to  the 
conductor,  and  that  she  had  better  go  and  get  on  the  car  and  be  ready. 
She  told  the  agent  that  slie  had  never  ridden  on  the  cars  before,  and 
asked  him  if  they  would  not  back  up  to  the  station,  lie  said  the 
regular  passenger  train  did. 

The  caboose  attached  to  this  freight  train  had  seats  like  a  passen- 
ger car  in  one  end,  the  other  part  being  for  the  conductor  and  train 
men.  There  were  steps,  a  door  and  a  platform  at  each  end,  and 
doors  in  the  side  in  the  part  used  by  the  train  men. 

At  the  place  in  question  the  defendant's  road  had  three  tracks. 
The  caboose  stood  on  the  track  farthest  from  the  depot,  and  about 
two  hundred  and  fifty  feet  north  of  it.  The  engine  stood  up  the 
track  still  further  north.  To  the  rear  or  south  end  of  the  caboose 
was  attached  a  flat  car.  The  bunter  of  the  flat  car  was  out.  A.bout 
five  feet  south  of  the  flat  car  stood  a  box-car. 

The  ticket  agent  went  with  the  plaintiff  out  on  the  platform  over 
the  first  track  to  the  middle  track,  in  view  of  the  caboose  car,  pointed 
it  out  witli  his  finger,  and  directed  her  to  go  to  it  and  get  on. 

The  plaintiff  passed  north  up  the  track  until  she  came  to  the  south 
end  of  the  flat  car,  and  then,  seeing  no  means  of  entering  the  caboose 
car,  as  she  supposed,  she  undertook  to  pass  between  the  flat  car  and 
the  box-car,  a  few  feet  south  of  it,  hoping  to  find  an  opening  by 
which  she  might  enter  the  car  on  the  other  side,  first  looking  up 
and  down  the  track,  and  discovering  nothing  in  motion.  At  this 
time  the  brakeman  and  conductor  were  engaged  in  making  up  the 
train.  Four  freight  cars  detached  from  the  locomotive,  the  conduc- 
tor upon  them,  were  very  slowly  coming  down  from  the  north  to  be 
attached  to  the  caboose.  When  they  came  near  the  caboose  the 
conductor  got  off  and  walked  alonsgide  to  make  the  coui)ling.  The 
concussion  was  slight,  but  was  sufficient  to  carry  the  caboose  and 
flat  car  far  enough  back  to  almost  close  the  space  through  which  the 
j)laiiitiff  was  at  that  moment  passing.  She  was  cauglit  between  the 
Hat  o:ir  and  the  box-car  about  tlie  hips,  and  received  the  injuries  for 
which  she  sues. 

Jury  trial.  Verdict  for  plaintiff  for  SoOOO.  Motion  for  now  trial 
overruled.     Judgment  upon  the  verdict.     Defendant  appeals. 

Day,  J. 

III.  The  court  gave  to  the  jury  sixteen  instructions,  wliich,  in 
the  main,  quite  fairly  present  the  case.  To  six  of  them  the  defend- 
ant makoH  objection.  Some  of  them  are  exceptionable  because  they 
-^  tn  the  jury  matters  outside  of  the  evidence  jiroduced.  TVe 
:»  instruction  given  is  as  follows:  — 


WHO   DEEMED   PASSENGERS.  531 

"  And  she  may  recover  not  only  the  amount  of  damages  which  she 
suffered  prior  to  the  commencement  of  this  suit,  but  also  all  the 
damages  proceeding  continuously  from  the  injury  complained  of, 
which  she  had  suffered  up  to  the  present  time,  and  which  it  is  reas- 
onably certain  she  will  suffer  in  the  future.  There  must,  however, 
be  a  reasonable  certainty  as  to  such  future  damages.  Yet  she  can- 
not recover  for  the  damage  which  she  might  have  avoided  by  the 
exercise  of  slight  care  and  diligence  after  she  became  aware  of  the 
injury  of  which  she  complains." 

This  instruction  is  erroneous.  It  is  the  duty  of  a  person  placed 
in  the  condition  of  plaintiff  to  exercise  not  slight,  but  reasonable 
care  and  diligence  to  effect  a  speedy  and  complete  cure.  And  for 
injuries  or  suffering  caused  or  enhanced  by  the  neglect  to  use  such 
care  she  cannot  recover.  Collins  v.  City  of  Council  Bluffs,  32 
Iowa,  324. 

Evidence  was  introduced  which,  appellant  claims,  shows  a  failure 
to  exercise  such  care,  as  her  failure  to  consult  a  physician  or  take 
medicine  after  the  lapse  of  about  one  week  from  the  injury,  and  her 
going  to  work  soon  after  the  injury  was  received. 

It  was  the  right  of  the  defendant  to  have  the  verdict  of  the  jury 
as  to  whether  plaintiff  exercised  ordinary  care  in  the  means  employed 
to  effect  a  cure.  And  we  cannot  say  that  it  has  not  been  prejudiced 
by  the  failure  to  submit  this  question  under  the  proper  instruction. 

For  the  error  in  this  instruction  the  cause  must  be  reversed,  but 
as  the  questions  raised  in  the  other  instructions  complained  of,  may 
arise  upon  the  new  trial,  it  is  necessary  that  we  should  consider 
and  determine  them. 

Whilst  in  the  main,  the  instructions  given  very  fairly  present  the 
case,  yet  some  of  them  have  objectionable  features  which  should  be 
avoided  on  the  new  trial. 

The  seventh  instruction  is  as  follows :  — 

"  If  you  believe  that  the  plaintiff  entered  into  an  office  or  waiting 
room  provided  by^defendant  for  passengers,  and  informed  the  depot 
or  ticket  agent  of  her  intention  and  desire  to  become  a  passenger; 
that  she  placed  herself  in  good  faith,  under  his  direction  as  suchj 
that  such  agent  directed  her  in  getting  on  (attempting  to  ^et  on't 
the  car;  these  facts,  if  established  to  your  satisfaction  by  the  evi- 
dence, would  be  sufficient  to  justifv  you  in  finding  that  the  relation 
of  passenger  existed  although  she  had  not  purchased  a  ticket,  and 
had  not  entered  a  car."  This  instruction  is  not  only  right  in  prin- 
ciple, but  it  is  supported  by  authority. 

If  the  actual  purchase  of  a  ticket,  or  the  entering  of  a  car  is  neces- 
sary in  order  to  constitute  the  relation  of  a  j)assenger,  then  no  one 
taking  passage  on  a  railway  at  a  way  station  where  no  tickets  are 
sold,  can  demand  of  the  company  the  exercise  of  that  high  degree  of 
care  which  a  common  carrier  owes  a  passenger,  until  he  had  actually 
obtained  admission  to  the  car.     If  the  doctrine  of  the  instruction  be 


532  CARRIERS  OF  PASSENGERS. 

not  right,  then  a  person  taking  passage  at  a  way  station,  without 
the  means  of  procuring  a  ticket,  might  be  precipitated  under  the 
wheels  and  injured,  from  a  defect  in  the  steps,  and  yet  could  demand 
of  the  company  the  exercise  of  only  ordinary  care. 

The  rule  given  by  the  court  is  distinctly  recognized  in  Shearman 
&  Redfield  on  Negligence,  section  2G2,  and  cases  cited,  and  we  have 
no  doubt  of  its  correctness. 

licversed. 


b.    Persons  inirsuing  Special  Callings. 

NOLTON   V.   WESTERN   E.    CO. 
15  X.  Y.  141.     1857. 

Df-murrkr  to  C<:)MI'Laixt.  The  complaint  stated  that  the  plain- 
tiff was  a  mail  agent  on  the  defendant's  railroad^  in  tlie  tMnploymi^yt 
of  the  United  States,  and  the  defendant  a  carrier  of  passengers  and 
freight,  for  fare  and  reward,  by  railroad  and  cars,  between  Green- 
bush  and  Boston.  That  defendant  was  bound  by  contract  between 
it  and  the  United  Statt-s,  fur  a  stipulated  time  and  price,  to  carr^ 
thi-  mails,  and  also  the  mail  a,!^^ent,  witlmut  further  charge;  that  in 
pursuance  and  in  consideration  of  such  contract,  the  defendant 
received  the  plaintiff  into  a  car  fitted  up  for  the  accommodation  of 
the  mail  and  mail  agent;  and  the  plaintiff,  for  the  considfratieii, 
aforesaid,  became  and  was  a  ]).asseii'-rer  in  the  said  cais.  to  be  by  the 
defendant,  tliereby,  safely  and  with  due  care  and  skill,  carried  and 
conveyt'd  to  Worcester,  which  tlie  defendant  then  and  there  under- 
took and  was  bound  to  do.  It  tlu;n  stales  a  bodily  injnrv  reeeivt'd 
by  tlie  ])laintiff,  by  the  running  of  the  car,  containing  the  iilaintilT)^ 
oif  till-  traek.  and  breaking  it,  through  defectiveness  of  macliint'ry, 
want  of  eare^  skill,  ».\:c.  The  defendant  demurred,  and  after  linal 
judgment  iov  the  plaintilT,  by  the  Supreme  Court  at  general  term, 
appe.'ilod  to  this  court.     The  case  was  suluuitted  on  ])rinted  briefs. 

Skm>kn,  J.  As  the  only  objection  which  can  be  taken  to  the 
complaint  upon  thi.s  demurrer  is,  that  it  does  not  contain  facts  suffi- 
cient to  constitute  a  cause  of  action,  it  is  entirely  immaterial  whether 
the  action  be  considered  as  in  form  ex  contractu  or  >\r  deltrto.  The 
only  fpiestion  is  whether,  uj)on  the  facts  stated,  the  iilaiiitilf  can 
ni.untain  an  aet.jon    in  any   form. 

Th<-   {ilaiiitiff  r;annot,   I    tliink,    avail    himself  of   tlie    contract   lie- 

twei-iijjjj^.   ij^Ji-iiilant  ami   the   go\rrniiiriit .    so  .as   to   make  tliat    llie 

:'laint,  and  tin-  loundatiou  of  a  recovery.       I'liis 

ill  which  a  tliird  pt-rsijii  has  been  permitted  to 


WHO   DEEMED    PASSENGERS.  533 

recover  upon  a  contract  made  by  another  party  for  his  own  benefit. 
The  distinction  between  them  is  plain.  Those  were  cases  where  the 
defendant,  for  a  consideration,  received  from  tlie  party  to  the  con- 
tract, had  undertaken  to  do  something  ostensibly  and  avowedly,  for 
the  direct  benefit  of  the  plaintiff,  and  when  the  advantage  to  the 
latter  was  one  object  of  the  agreement.  Here  the  parties  had  no 
such  intention.  In  contracting  for  the  transportation  of  the  mail 
agent,  the  parties  had  no  more  in  view  any  benefit  or  advantage  to 
him,  than  if  the  contract  had  been  to  transport  a  chattel.  The 
government  took  care  of  the  public  interests,  and  left  those  of  the 
mail  agent  to  such  protection  as  the  law  would  afford. 

Another  distinction  is,  that  in  the  cases  referred  to,  the  party 
claiming  the  benefit  of  the  contract  and  seeking  to  enforce  it,  was 
one  who  was  specifically  mentioned  and  pointed  out  in  the  contract 
itself,  while  here  no  one  is  designated;  and  to  entitle  the  plain- 
tiif  to  recover  upon  it,  it  must  be  regarded  as  a  shifting  contract, 
which  can  be  made  to  enure  to  the  benefit  of  any  person  who  may 
temporarily  assume  the  duties  of  mail  agent.  I  think  there  is  no 
precedent  for  such  a  construction  of  such  a  contract. 

If,  then,  the  plaintiff  can  recover  at  all,  it  umst  be  upon  the 
ground  of  some  implied  contract,  or  of  some  legal  obligation  or  duty 
resting  upon  the  defendants,  to  exercise  proper  care  and  skill  in  the 
transportation  of  passengers,  and  the  question  is,  whether,  under 
the  circumstances  of  this  case,  such  a  contract  is  implied,  or  such  a 
duty  imposed  for  the  benefit  of  the  plaintiff. 

It  would  seem  a  startling  proposition,  that  in  all  those  cases  where 
persons  travel  upon  railroads  engaged  not  in  their  own  business, 
but  that  of  others,  and  where  their  fare  is  paid  by  their  employer, 
they  are  entirely  at  the  mercy  of  the  railroad  agents,  and  without 
redress,  if  injured  through  their  recklessness  and  want  of  care  and 
skill.  If,  however,  railroad  companies  are  liable,  in  cases  like  the 
present,  it  is  important  to  ascertain  the  precise  nature  and  extent 
of  that  liability. 

In  the  first  place,  then,  it  is  clear  that  they  are  not  liable^  by  vir - 
tue  of  that  custom  or  rule  ot  the  common  law  which  imposes  special 
and  peculiar  obligations  upon  common  carriers.  Persons  engaged 
in  the  conveyance  of  passengers  are  not  common  carriers  Avithin  the 
meaning  of  that  rule,  which  applies  solely,  to  those  whose  business 
it  is  to  transport  goods.  Bac.  Abr.,  tit.  carriers;  2  Kent's  Com., 
§  40;  Story  on  Bail.,  §  408,  and  note. 

If  the  complaint  in  this  case,  after  stating  that  the  defendant  was 
a  carrier  of  passengers  and  freight  from  Greenbush  to  Boston,  for 
hire  and  reward,  had  simply  averred  that  the  plaintiff  became  a  pas- 
senger in  the  cars  of  the  defendant,  and  was  so  received  by  it;  an 
implied  contract  would  have  arisen  on  the  part  of  the  defendant, 
to  transport  the  plaintiff,  with  all  due  diligence  and  skill ;  because 
the  law  would  have  inferred  from  those  facts  that  the  defendant 


534  CARRIERS    OF    PASSENGERS. 

was  to  receive  a  compensation  from  the  i)laintitf  himself.  But  this 
inference  is  repelled  by  the  contract  set  forth,  and  the  statement 
that  the  plaintiff  was  received  as  a  passenger  under  it. 

It  was  suggested  by  the  plaintiff's  counsel,  upon  the  argument, 
that  a  contract  might  be  implied,  of  which  the  agreement  between 
the  defendant  and  the  government  should  form  the  consideration 
and  basis.  But  although  that  asfreement  may  be  resorted  to.  foy 
the  ])urpose  of  showin.L;  that  the  t)laintiff  became  a  passeu'jer  upon 
the  cars  bv  tlie  eonsc-nt  of  the  defendant,  and  not  as  a  mere  intruder^ 
It  cannot.  I  think,  be  made  available  by  tlie  plaintilY.  as  the  con- 
sideration of  an  implied  aac^tan/'siL  As  to  him,  that  agreement  is 
res  inter  alios  ucta.  He  is  not  a  party  to  it  or  mentioned  in  it.  His 
employment  by  the  government  may  have  taken  place  long  after  the 
agreement  was  made,  and  have  had  no  reference  to  it.  If  any  con- 
tract can  be  implied  from  that  agreement,  in  favor  of  the  plaintiff, 
it  must  be  a  contract  to  transport  him  from  place  to  place,  accord- 
ing to  the  terms  of  the  agreement.  Suppose,  then,  the  cause  of 
action,  instead  of  being  for  an  injury  received  through  the  negli- 
gence of  the  defendant,  had  been  for  not  furnishing  the  necessary 
cars,  or  not  running  any  train,  could  the  plaintiff  recover  in  such 
an  action?  Would  the  defendant  be  liable  for  its  failure  to  perform 
the  contract,  not  only  to  the  party  with  whom  the  contract  was 
made,  and  from  whom  the  consideration  was  received,  but  to  a  third 
party  not  named  in  it,  and  from  whom  they  had  received  nothing? 
No  one  would  claim  this. 

It  may  be  said  that  the  implied  contract  with  the  plaintiff  is 
limited  to  an  undertaking  to  transport  safely  or  with  due  care.  It 
is  difficult  to  see,  however,  how  there  can  be  a  contract  to  transport 
safely  where  there  is  no  contract  to  transport  at  all.  My  conclusion 
therefore  is,  that  this  action  cannot  be  maintained  upon  the  basis  of 
a  contract  ex])ress  or  impli(Ml. 

It  necessarily   folhnvs   that    it  must   rest  exclusively  u]ioii   thaj; 

obligatiijii    wliifh    tlie    law     always    imposes    upon    every    (un-    who 

attenijits  to  do  anytllin;^^  even  ;j:ratuiti)usly,  for  another,  to  exereiso 

some  decrr(;e  of  earc  and  skill   in  the  ]ierl'onnance  of  what  he   has 

Tiii'l'Tt:iki-n,      The   leading  case  on  this  subjeet  is  that  of  Coggs  r. 

I'.ernaid,  J^il.  liay.  'JO'J.      There   the   defendant  had    undertaken    to 

'ike  several  hogsheads  of  branrly  belonging  to  the  plaintiff,  from  one 

r  in  London,  and  to  dejjosit  it  in  another;  and  in  the  jirocess  of 

:ig   one   of   the    hogsheads   was   staved   and   the    Ijrand}^    lost, 

igh  the  carelessness  of  the  defendant  or  his  servants.     Although 

i  not  appear  that  the  defendant  was  to  receive  anything  for  his 

e.H,  he  wa.s,  nevertheless,  held  liable  by  the  whole  court. 

]'•  of  this  case  h.i  iliee  been  doubted.   Init  there 

^  .•    r-fiTifir  ir,ii    in    i  'gueiit   casTs    n.'y    lO   Hie    inie 

^  iiid  as  to  th(;  form  of  thr  remedy  lor  its 

w  Utitccji  suits  have   been   brouudil,   iip'ni    the 


WHO   DEEMED   PASSENGERS.  535 

supposition  that  an  implied  contract  arises,  in  all  such  cases,  that 
the  ])artv  will  exercise  due  care  and  dilii^ence;  and  the  language  of 
Lord  Holt,  in  Coggs  v.  Bernard,  undoubtedly  gives  countenance  to 
this  idea.  He  seems  to  treat  the  trust  and  confidence  reposed  as  a 
sufficient  consideration  to  support  a  promise.  'J'his  doctrine,  how- 
ever, can  hardly  be  considered  as  in  consonance  with  the  general 
principles  of  the  common  law.  In  addition  to  the  difficulty  of 
bringing  mere  trust  and  confidence  within  any  legal  definition  of 
valuable  consideration  there  is  a  manifest  incongruity  in  raising  a 
contract,  to  do  with  care  and  skill  that  which  the  party  is  under  no 
legal  obligation  to  do  at  all. 

The  duty  arises  in  such  cases,  I  apprehend,  entirely  independent 
of  any  contract,  either  expressed  or  implied.  The  principle  upon 
which  a  party  is  held  responsible  for  its  violation  does  not  differ 
very  essentially,  in  its  nature^  from  that  which  imposes  a  liability 
upon  the  owner  of  a  dangerous  animal,  who  carelessly  suffers  such 
animal  to  run  at  large,  by  means  of  which  another  sustains  injury : 
or  upon  one  who  digs  a  ditch  for  some  lawful  purpose  in  a  highway, 
and  carelessly  leaves  it  uncovered  at  night,  to  the  injury  of  some 
traveller  upon  the  road.  It  is  true,  it  may  be  said  that,  in  these 
cases,  the  duty  is  to  the  public,  while  in  the  present  case,  if  it 
exists  at  all  it  is  to  the  individual ;  but  the  basis  of  the  liability  is 
the  same  in  both  cases,  viz.,  the  culpable  negligence  of  the  party. 
All  actions  for  negligence  presuppose  some  obligation  or  duty  vio- 
lated.  Mere  negligence,  where  there  was  no  legal  obligation  to  use 
care,  as  where  a  man  digs  a  pit  upon  his  own  land,  and  carelessly 
leaves  it  open,  affords  no  ground  of  action.  But  where  there  is  any- 
thing in  the  circumstances  to  create  a  duty,  either  to  an  individual 
or  the  public,  any  neglect  to  perform  that  duty,  from  which  injury 
arises,  is  actionable. 

The  present  case  falls  clearly  within  this  principle  of  liability. 
There  can  be  no  material  difference  between  a  gratuitous  undertak- 
ing to  transport  property,  and  a  similar  undertaking  to  transport 
a  person.  If  either  are  injured  through  the  culpable  carelessness 
of  the  carrier,  he  is  liable.  If,  according  to  the  case  of  Coggs  v. 
Bernard,  supra,  and  the  subsequent  cases,  an  obligation  to  exercise 
care  arises  in  one  case,  it  must  also  in  the  other. 

It  is  true  that,  according  to  the  authorities,  the  party  in  such  cases 
is  only  liable  for  gross  negligence.  But  what  will  amount  to  gross 
negligence  depends  upon  the  special  circumstances  of  each  case.  It 
has  been  held  that,  when  the  condition  of  the  party  charged  is  such 
as  to  imply  peculiar  knowledge  and  skill,  the  omission  to  exercise 
such  skill  is  equivalent  to  gross  negligence.  Thus,  it  was  said  by 
Lord  Loughborough,  in  Shiells  v.  Blackburne,  1  Hen.  Bl.  158,  that 
"if  a  man  ^ra^?^?fo».s/y  undertakes  to  do  a  thing  to  the  best  of  his 
skill,  when  his  situation  or  profession  is  such  as  to  imply  skill,  an 
omission  of  that  skill  is  imputable  to  him  as  gross  negligence." 


536  CARRIERS  OF  I'ASSENGERS. 

The  same  doctrine  is  advanced  by  Park,  B.,  in  Wilson  v.  Brett, 
11  Mees.  &  Wels.  113.  He  says:  "In  the  case  of  a  gratuitous 
bailee,  where  his  profession  or  situation  is  such  as  to  imply  the 
possession  of  competent  skill,  he  is  equally  liable  for  the  neglect  to 
use  it." 

I  regard  this  principle  as  peculiarly  applicable  to  railroad  com- 
panies in  view  of  the  magnitude  of  the  interests  which  depend  upon 
the  skill  of  their  agents,  and  of  the  utter  powerlessness  of  those 
who  trust  to  that  skill  to  provide  for  their  own  security. 

This  case  is  not  like  that  of  Winterbottom  v.  Wright,  10  j\Iees. 
&  Wels.  109.  There  the  defendant  had  not  undertaken  to  trans- 
port the  plaintiff,  either  gratuitously  or  otherwise.  He  was  simply 
bound  by  contract  with  the  government  to  furnish  and  keep  in  repair 
the  carriages  used  V)y  the  latter  in  transporting  the  mails.  The 
relations  of  the  parties  in  that  case  and  in  this  are  very  different, 
and  the  cases  cannot  be  considered  as  governed  by  the  same 
principles. 

I  entertain  no  doubt  that  in  all  cases  where  a  railroad  oompaiiy 
voluntarily  undertakes  to  convt-v  a  ])assen'-:er  uuon  their  road. 
whetlitT  witli  or  without  ooinj^ensation.  in  the  absence,  at  least,  pf 
an  exitress  agreement  exempting  it  from  responsibility,  if  sucll^jiis- 
sentrer  is  niiured  by  the  culpable  negligence  or  want  of  skill  of  the 
agents  of  the  com])any.  the  latter  is  liable.  The  matter  of  compen- 
sation may  have  a  bearing  u})on  the  degree  of  negligence  for  which 
the  company  is  liable.  That  question,  however,  does  not  arise 
here.  Degrees  of  negligence  are  matters  of  proof,  and  not  of  aver- 
ment. The  allegations  of  negligence  in  this  complaint  are  sufficient 
whether  the  defendant  is  liable  for  ordinary  or  only  for  gross 
negligence. 
The  judgment  should  be  affirmed. 


C.    Employees. 

GILLSHAXXON  v.    STONY   BROOK   R.    CO. 

10  Cii.sli.  (Mass.)  228.     1852. 

Action  on  the  case  for  injuries  sustained  by  the  ]ilaintifF,  a  laborer 
in  the  employment  of  the  defendants,  by  the  negligence  of  their 
H<!rvants  and  agents.  It  was  tried  in  this  court  before  Bi<ircrow,  J., 
by  wliom  the  evidence  was  rejiorterl  for  the;  consideration  of  the 
whole  court.     From  this  evidence  it  appeared  that  tlie  p]:iiiitilT  was 

't  '■'•'■'"  1  .I.-...—    .1.  ,-,.,i   ;,^  £ppairing  tlie  defendant's  roMd-lteil, 

It   Ilia  residence.     Kacji  morniii'^^  and 


WHO    DEEMED    PASSENGERS.  537 

evening  he  rode  with  other  laborers,  to  and  from  the  place  of  labor 
on  the  gravel  train  of  the  defendants.  This  was  done  with  the  con- 
sent of  the  company,  and  for  mutual  convenience;  no  compensation 
being  paid,  directly  or  indirectly  by  the  laborers,  for  tlie  passage, 
and  the  company  being  under  no  contract  to  convey  the  laborers  to 
and  from  their  work. 

"While  thus  on  the  way  to  their  work  on  one  occasion,  a  collision 
took  place  with  a  hand-car  on  the  track,  through  the  negligence  of 
those  having  charge  of  the  gravel  train,  as  the  plaintiff  contended, 
and  he  was  thrown  ofF  and  run  over  bv  the  gravel  train,  for  which 
injury  this  action  was  brought.  The  plaintiff  had  no  charge  or  care 
over  the  gravel  train,  and  there  was  some  evidence  that  the  gravel 
train  was  not  sufficiently  supplied  with  brakemen.  If,  upon  these 
facts,  the  jury  would  be  justified  in  finding  a  verdict  for  the  plain- 
tiff, the  case  was  to  stand  for  trial ;  otherwise  the  plaintiff  to  become 
nonsuit. 

Dewey,  J.  If  the  relation  existing  between  these  parties  was 
that  of  master  and  servant,  no  action  will  lie  against  the  defendants 
for  an  injury  received  by  the  plaintiff  in  the  course  of  that  service 
occasioned  by  the  negligence  of  a  fellow-servant.  Farwell  v.  Boston 
and  Worcester  Railroad,  4  Met.  49;  Hayes  v.  Western  Eailroad, 
3  Cush.  270. 

It  was  attempted  on  the  argument  for  the  plaintiff  to  take  the 
case  out  of  the  rule  stated  in  those  cases,  upon  the  ground  that  the 
nature  of  the  employment  of  these  servants  was  different,  the  plain- 
tiff being  employed  as  a  laborer  in  constructing  the  railroad  bed, 
and  not  engaged  in  any  duty  connected  with  running  the  trains,  and 
so  not  engaged  in  any  common  enterprise.  The  case  of  Albro  v. 
Agawam  Canal  Co.,  6  Cush.  75,  seems  to  be  adverse  to  these  views, 
and  goes  strongly  to  sustain  the  defence. 

It  was  also  urged  that  the  plaintiff  was  not  in  the  employment  of 
the  defendants  at  the  time  the  injury  was  received,  or  that  he  might 
properly  be  considered  as  a  passenger,  and  the  defendants,  as  respects 
him,  were  carriers  for  hire.  But  as  it  seems  to  us,  in  no  view  of 
the  case  can  this  action  be  maintained.  If  the  plaintiff  was  by  the 
contract  of  service  to  be  carried  by  the  defendants  to  the  place  for 
his  labor,  then  the  injury  was  received  while  engaged  in  the  service 
for  which  he  was  employed,  and  so  falls  within  the  ordinary  cases 
of  servants  sustaining  an  injury  from  the  negligence  of  other  ser- 
vants. If  it  be  not  properly  inferable  from  the  evidence  that  the 
contract  between  the  parties  actually  embraced  this  transportation 
to  the  place  of  labor,  it  leaves  the  case  to  stand  as  a  permissive 
privilege  granted  to  the  plaintiff,  of  which  he  availed  himself,  to 
facilitate  his  labors  and  service,  and  is  equally  connected  with  it, 
and  the  relation  of  master  and  servant,  and  therefore  furnishes  no 
ground  for  maintaining  this  action. 

How  does  the  case  differ  from  that  suggested  at  the  argument  by 


538  CARRIERS    OF    PASSEXGERS. 

the  counsel  for  the  defendants,  who  supposed  a  case  where  the  busi- 
ness for  which  the  party  is  employed  is  that  of  cutting  timber,  or 
standing  wood,  and  the  servant  receives  an  injury  in  his  person  on 
the  way  to  the  timber-lot,  by  the  overturning  of  the  vehicle  in  which 
he  is  carried,  by  the  negligence  or  careless  driving  of  another  ser- 
vant? There  is  no  liability  on  the  part  of  the  master  in  such  a 
case. 

It  seems  to  the  court,  that  upon  the  evidence  offered  in  the  present 
case,  the  plaintiff  was  not  entitled  to  a  verdict,  and  the  nonsuit 
should  stand. 

Plaintiff  nonsuit. 


RYAN    V.    CUMBERLAND   VALLEY   R.    CO. 
23  Penn.  St.  3S4.     1854. 

Action'  on  the  case  by  John  Ryan  against  the  company  for 
damages  occasioned  by  the  breaking  of  his  arm  while  in  tlie  employ- 
ment of  the  company,  and  through  the  carelessness  of  their  agents. 

The  plaintiff,  with  many  others,  was  employed  by  the  defendants 
to  make  repairs  on  their  road,  and  the  work  was  carried  on  partly 
by  means  of  a  train  of  gravel  cars,  made  to  dump  to  either  side,  and 
moved  by  locomotive  power.  He  was  a  common  laborer,  employed 
in  digging,  and  in  hlling  the  cars,  and  in  such  like  work;  and  as 
the  hands  boarded  in  Chambersburg,  about  four  miles  distant  from 
their  principal  work,  it  was  usual  for  them  to  ride  to  and  from  their 
work  in  gravel  cars.  While  the  plaintiff  and  others  were  thus  going 
to  their  work,  October  2S,  18;j(),  at  railroad  speed,  the  accident  com- 
plained of  happened  by  the  dumping  of  one  of  the  cars,  wliich  seems 
not  to  have  been  hooked,  and  throwing  the  plaintiff  out  upon  the 
road.  It  is  charged  that  it  was  the  duty  of  the  defendants  by 
their  engineer  or  conductor  to  see  that  all  the  cars  were  safe  before 
starting. 

The  court  below  (Ivi.-m.-mkl,  I'.  J.)  instructed  the  jury  that  under 
such  circumstances  the  plaintiff  had  no  right  to  recover,  and  hence 
this  writ  of  error. 

LowKiK,  J.  The  nature  of  the  case  requires  the  admission  tliat  it 
was  the  understanding  of  the  jiarties  that  the  hands  were  to  ride  on 
the  gravel  train  to  and  from  their  work  and  at  their  work,  and  the 
plaintiff  is  entitled  to  use  this  fact  as  a  part  of  his  case.  He  can- 
not, however,  use  it  as  presenting  the  whole  of  the  relation  between 
liim  anil  the  defendants.  H(;  was  not  a  mere  passenger  on  tlie 
defendant's  cars;  becaiiso  his  travcd  upon  tliem  was  really  an  inci- 
<lent  of  a  different  relation,  that  of  a  servant,  and  this  is  the  char- 
act*?r  in  which  we  must  regard  him  here.  He  was  no  more  a  pas- 
senger than  is  the  coachman,  or  wagoner,  or  carter,  who  is  in  the 


WHO   DEEMED   PASSENGERS.  539 

employment  of  another.  He  was  simply  a  servant,  with  the  priv- 
ilege of  riding,  as  part  of  his  business,  in  the  gravel  train,  which 
was  one  of  the  instruments  of  his  work.  He  could  not  and  does  not 
sue  on  a  contract  as  a  passenger,  for  that  was  not  his  relation ;  but 
he  does  sue  on  his  true  relation ,  as  a  servant  injured  by  the  careless- 
ness of  his  fellow-servants. 

The  plaintiff  seeks  to  strengthen  his  position  by  the  allegation 
and  by  evidence  that  it  was  the  duty  of  the  engineer  to  see  that  all 
the  cars  were  safely  hooked  before  starting  the  train,  and  that  his 
neglect  in  this  respect  is  chargeable  to  the  company.  As  a  matter 
of  fact,  this  does  not  seem  probable;  yet  we  must  examine  its  influ- 
ence, as  if  it  might  be  proved. 

This  alleged  duty  did  not  grow  out  of  any  contract  between  the 
plaintiff  and  the  defendants,  else  the  contract  would  have  been 
charged  as  an  essential  and  relevant  bond  of  their  relation,  which 
has  not  been  done.  If  it  was  a  duty  which  the  engineer  owed  to  the 
plaintiff  in  any  way,  then  the  action  ought  to  be  against  him  for  the 
breach  of  it.  If  he  owed  it  to  the  defendants,  then  they  alone  can 
complain  of  its  non-performance. 

The  duty  must  therefore  be  alleged  as  that  of  the  defendants  to 
the  plaintiff.  In  what  form  shall  we  put  it,  or  how  shall  we  define 
it?  Is  it  that,  when  persons  are  employed  to  work  for  others,  the 
employers  are  bound  to  see  that  the  instruments  of  their  work  are 
and  shall  continue  in  a  condition  to  be  used  with  safety?  Then  the 
coachman,  the  wagoner,  and  the  carter,  who  ought  to  know  more 
about  the  vehicles  which  they  use  than  their  employers  do,  have 
a  practical  warranty  that  they  are  in  good  order,  though  practically 
we  know  that  many  of  them  are  nearly  worn  out;  the  wood-chopper 
and  the  grubber  are  insured  that  their  axe  or  mattock  shall  not 
injure  them  by  flying  off  the  handle ;  the  engineer,  the  miller,  the 
cotton-spinner,  and  the  wool-carder  have  a  guaranty  for  the  acci- 
dents that  may  befall  them  in  the  use  of  the  machinery  which  they 
profess  to  understand,  and  which  they  ought  so  to  understand  as  to 
be  able  to  inform  their  employers  when  it  is  out  of  order. 

If  this  be  so,  then  the  care  and  skill  required  of  workmen  is 
reduced  very  much  below  what  is  ordinarily  expected  of  them.  If 
there  be  any  distinction  between  any  of  the  cases  put  and  the  one  in 
hand,  it  is  too  narrow  to  be  made  the  foundation  of  a  new  rule  or  to 
cancel  the  force  of  the  analogy  which  they  afford.  Certainly  such 
a  duty  has  never  been  considered  as  belonging  to  these  relations, 
and  therefore  it  cannot  be  law. 

The  only  way  left  for  defining  the  supposed  duty  is  to  allege  that 
employers  are  liable  when  any  of  those  employed  by  them  are  injured 
by  the  carelessness  of  their  fellow-laborers.  Though  this  proposi- 
tion has  never  been  decided  upon  by  this  court,  it  has  often  been 
considered  elsewhere  and  decided  in  the  negative,  and  we  know  but 
one  case  that  seems  to  affirm  it:  20  Ohio  Eep.  415. 


540  CARRIERS   OF   PASSENGERS. 

It  has  been  decided  in  the  negative  in  cases  relating  to  those 
employed  in  running  railroad  cars:  1  Mc^Mullan,  385;  3  Cush,  270; 
4  Met.  49;  5  Exch.  Kep.  343;  G  Barb.  R.  (Sup.  C.)  231;  15  /(/.  574; 
in  navigating  vessels,  2  Richardson,  455;  in  driving  a  wagon,  3 
Mees.  &  W.  1;  in  building,  5  Exch.  R.  354,  6  Hill,  592;  and  in 
factories,  G  Cush.  75.  And  such  is  the  rule  even  when  the  careless 
one  is  the  superior  of  the  other,  or  has  a  special  duty  to  perform 
upon  which  the  safety  of  the  others  depends.  Where  we  find  a  road 
is  so  well  beaten,  it  is  easy  to  follow  it,  and  its  beaten  character  is 
an  indication  that  we  may  follow  it  with  safety.  We  shall  trust  to 
this  indication,  sustained,  as  it  is,  by  reasons  which  have  been  so 
fully  expressed  by  others  that  we  can  do  little  else  than  repeat  them. 

The  rule  announced  by  these  cases  is,  that  where  several  persons 
are  employed  in  the  same  general  service,  and  one  is  injured  from 
the  carelessness  of  another,  the  employer  is  not  responsible. 

On  what  principle  can  a  contrary  rule  be  founded?  The  maxim, 
sic  iitere  tno  ut  nllenum  non  la-das,  does  not  apply;  for  that  is  the 
most  general  of  all  rules,  intended  to  define  the  duties  of  those  who 
have  no  other  relation  than  contiguity  and  a  common  humanity.  It  is 
intended  as  the  general  rule,  defining  the  general  relation  of  man  in 
society,  and  not  any  of  the  special  relations,  which  must  have  their 
own  rules,  depending  upon  their  special  character.  Our  question  is, 
therefore,  reduced  to  this:  What  is  thei-e  in  the  special  relation  of 
master  and  servant  from  which  a  contrary  rule  can  be  deduced? 

With  us  tliis  relation  is  always  instituted  by  a  contract,  and  to 
that  we  must  look  for  the  principal  terms  by  which  it  is  defined. 
The  contract  defines  the  duty  of  each  party;  and  as  we  do  not  find 
that  the  duty  which  is  now  insisted  on  was  made  a  part  of  the  con- 
tract, we  infer  that  it  has  no  existence. 

Jiut  it  must  be  concede<l  tliat  many  of  the  relations  of  life  are 
instituted  in  the  most  general  terms,  and  that  the  special  duties  of 
each  party  are  so  well  understood  in  society  that  they  are  left 
entirely  undefined  in  the  contract,  and  each  is  presumed  to  have 
undertaken  them  witliout  their  being  formally  specified.  Certainly 
no  one  will  jjretend  tliat  the  duty  liere  insisted  upon  has,  in  tliis 
wa}',  become  part  of  this  contract;  for  no  one  so  understands  it,  and 
no  one  would  so  contract  if  requested. 

There  i.s,  therefore,  no  way  left  but  to  allege  tliat  tlip  law  lias 
made  it  a  duty  of  a  master  to  see  that  his  servants  do  not  injure 
each  other  l)y  their  carelessness.  There  is  no  statute  of  tliis  pur- 
piirt;  and  therefore  the  allegation  must  be  that  it  is  a  part  of  the 
common  law.  liut  the  common  law  consists  of  the  general  customs 
of  the  people,  and  of  the  maxims  and  i)rinciples  on  whicli  they  act; 
and  it  i.s  conclusive  against  tlie  rule  contended  for  that  it  has  never 
\tt;i-u  found  among  these,  and  is  not  d(!(lucible  from  tliem. 

liut  the  duty  insisted  upon  is  substantially  one  of  protection 
which  cannot  exist  without  implying  the  correlative  one  of  dejicn- 


WHO   DEEMED    PASSENGERS.  541 

dence  or  subjection.  The  relations  of  husband  and  wife,  parent  and 
child,  are  in  law  relations  of  protection  and  dependence ;  and  there 
are  those  which  are  so  in  fact,  as  where  a  weak-minded  person  sub- 
mits himself  to  the  direction  of  another;  and  here  the  law  interferes 
to  protect  against  an  undue  exercise  of  influence  and  power.  And 
there  are  others,  as  the  Sunday  laws  and  the  laws  regulating  the 
hours  of  labor  in  particular  occupations,  whereby  the  law  protects 
men  against  the  danger  arising  from  undue  competition;  but  the 
strictness  used  in  defining  this  relation,  as  belonging  to  special 
cases,  implies  that  it  has  no  wider  existence. 

There  is  no  relation  of  protection  and  dependence  between  master 
and  servant,  or  of  confidence  in  the  institution  of  the  relation;  we 
speak  not  of  master  and  apprentice.  The  servant  is  no  Roman 
client  or  feudal  villein,  with  a  lord  to  protect  him.  Both  are  equal 
before  the  law,  and  considered  equally  competent  to  take  care  of 
themselves,  and  very  often  the  servant  is  the  more  intelligent  of 
the  two. 

The  argument  that  the  law  implies  a  warranty  that  one  servant 
shall  not  be  injured  by  the  carelessness  of  another  is  only  another 
way  of  stating  the  proposition  that  the  law  imposes  the  duty  of  pro- 
tection; and  it  must  be  set  aside  by  the  same  answer. 

And  what  would  be  the  value  of  such  a  rule?  If  it  exists  at  all, 
it  must  grow  out  of  the  relation  and  affect  all  persons  standing  in 
it;  and  this  would  change  all  our  ideas  concerning  the  relation  of 
master  and  servant.  Every  man  must  have  his  own  business, 
whether  as  master  or  as  servant,  and  there  is  no  business  without 
its  risks.  Where  many  servants  are  employed  in  the  same  business, 
the  liability  to  injury  from  the  carelessness  of  their  fellows  is  but 
an  ordinary  risk,  against  which  the  law  furnishes  no  protection  but 
by  an  action  against  the  actual  wrongdoer.  It  would  violate  the  law 
of  nature  if  it  should  provide  an  immunity  to  any  one  against  the 
ordinary  dangers  of  his  business,  and  it  would  be  treating  him  as 
incapable  of  taking  care  of  himself. 

If  we  declare  that  workmen  are  warranted  against  such  careless- 
ness, then  the  law  places  all  careless  men,  which  means  all  badly 
educated  or  badly  trained  men,  and  it  places  even  those  who  have 
not  acquired  a  reputation  for  care,  under  the  ban  of  at  least  a  partial 
exclusion  from  all  work.  And  this  is  the  ordinary  result  of  all 
undue  attempts  to  protect  by  law  one  class  of  citizens  against 
another.  It  is  done  at  a  practical  sacrifice  of  liberty  on  the  part 
of  those  intended  to  be  protected,  and  to  the  embarrassment  of  the 
common  business  of  life,  by  imposing  upon  the  people  a  rule  of  a 
new  and  unusual  character  which  may  require  half  a  century  to 
become  fitted  like  a  custom,  and  adapted  to  the  customs  already 
existing,  which  it  does  not  have  the  effect  of  annulling. 

If  this  were  the  rule,  it  would  embarrass  the  conduct  of  all  busi- 
ness, where  any  risk  is  to  be  run.     How  could  a  sailor  be  ordered 


542  CARRIERS   OF   PASSENGERS. 

aloft  in  a  storm,  without  the  employers  being  liable  to  the  charge 
that  the  captain  had  shown  want  of  proper  skill  and  care  in  giving 
such  an  order  in  the  circumstances?  How  could  the  wearied  laborer 
be  allowed  to  ritle  home  with  the  driver,  without  danger  that  the 
employer  should  be  called  to  account  for  an  accidental  tilting  of  the 
cart? 

And  such  a  rule  could  have  very  little  application  to  great  corpo- 
rations, for  they  would  immediately  act  on  the  maxim,  conventio 
vincit  legem,  and  provide  against  it  in  their  contracts.  But  it  would 
live  to  embarrass  the  more  private  and  customary  relations,  and  be 
the  source  of  abundant  litigation. 

The  court  below  decided  rightly  that  the  rule  contended  for  has 
no  existence. 

Jadytiicnt  affirmed. 

Lewis,  J.,  and  Knox,  J.,  dissented. 


d.    For  Comjjensation. 

TARBELL  v.    CENTRAL  PACIFIC   R.    CO. 

34  Cal.  010.     1868. 

[Action  to  recover  damages  for  wrongful  ejection  from  train.] 
On  the  trial,  which  was  by  the  court  with  a  jury,  plaintitf  yjroveil 
(the  defendant  objecting  and  excepting  thereto  for  irrelevancy  and 
incompetency)  that  wliile  on  the  defendant's  moving  train  of  pas- 
senger cars,  at  a  ])oint  about  live  miles  from  Auburn,  towards  Colfax, 
he  having  entgcfijj  the  train  at  Auljurn,  he  tendered  to  tlio  conduntor 
of  the  train,  upon  tlie  usual  demand  Ijc-ing  made  of  liiiii  jny  his  ticket 
or  far<-,  the  legul  ])assenger  tare  (thargeable  between  the  Aulaiin  and 
Ciilfax  railroad  stations,  in  tlut  ]e''al  tender  notes  of  the  I'liitrd 
States.  The  r;(Miduetor  refused  to  iieeopt  tlie  ])aynient  so  tendered, 
and  demanded  tliat  it  bt;  made  in  the  gohl  or  silver  coin  of  t]i(> 
I'nited  States,  and  on   tlu;   faihire  and   refusal  of  jihiintiff  to  make 

t! ••    i'lit  as  retpiired,  caused  the  train  to  lie  stojiped  and  i.ihiiutiff 

\  _     ''-il  thcMefrom.      PlaintilT  had  a  verdict  and  jiiil,L,'nieiit,  fur 

five  iiujidred  dollars  damages.  The  defendant  moved  f(jr  a  new 
trial  upon  a  settled  statement  of  the  evidence  and  rulings  of  the 
court  on  demurrer  and  the  admission  of  evidence,  on  grounds  of 
alleged  error  in  law  occurring  at  the  trial,  that  the  verdict  and  judg- 
ment wf'fo  against  law,  and  that  the  verdict  was  excessive.  The 
'  '<  denied,  and  defendant  appealetl  from  tlie  judgment  and 

^  of  the  court  denying  a  new  trial. 


WHO   DEEMED   PASSENGEES.  543 

Sanderson,  J.  In  actions  of  this  character  it  is  not  necessary 
that  the  phiintiff  should  allege  a  strictly  le^al  tender  of  his  fare. 
It  was  so  held  in  the  case  of  Pickford  v.  The  Grand  Junction  liail- 
way  Company,  8  M.  &  Wels.  372.  It  is  sufficient  to  allege  that  he 
was  ready  and  willing,  and  offered  to  pay  the  defendant  such  sum 
of  money  as  it  was  legally  entitled  to  charge.  The  transportation 
and  payment  of  the  fare  are  contemporaneous  acts.  If  the  plaintiff 
was  ready  and  willing,  and  offered  to  pay  the  legal  fare  when 
demanded  by  the  conductor  of  the  train,  the  defendant  was  bound 
to  carry  him,  provided  there  was  room  in  the  cars  and  the  plaintiff 
was  a  fit  person  to  be  admitted.  This  results  from  the  nature  of 
the  defendant's  business,  which  makes  it  its  duty  to  receive  all  per- 
sons as  passengers  who  offer  to  become  such,  upon  their  offering  to 
pay  the  legal  fare.  Whenever  the  performance  of  a  duty  or  obliga- 
tion is  thus  cast  upon  the  one  party  in  consequence  of  a  contempo- 
raneous act  of  payment  by  the  other,  it  is  sufficient  if  the  latter  is 
ready  and  willing  to  pay  when  the  former  is  ready  to  undertake  the 
duty.     Eawson  v.  Johnson,  1  East,  203. 

The  complaint  in  this  case  might  have  been  drawn  with  more 
directness  and  precision  in  this  respect,  but  we  are  disposed  to  hold 
that  the  court  below  did  not  err  in  overruling  the  demurrer.  It 
would  have  been  more  certain  had  the  amount  of  the  fare  been  stated 
which  the  plaintiff  offered  to  pay,  and  that  the  person  to  whom  the 
offer  was  made  was  the  conductor  in  charge  of  the  train ;  but  we  are 
not  prepared  to  say  it  is  not  sufficiently  certain  in  its  present  form. 

The  point  that  the  defendant  was  not  bound  to  carry  the  plaintiff 
because  the  fare  which  he  offered  to  pay  was  in  legal  tender  notes, 
is  not  tenable.  Conceding  that  a  statute  authorizing  defendant  to 
demand  coin  in  payment  of  fare  would  be  constitutional,  no  such 
statute  exists,  and  there  being  no  contract  in  writing  stipulating  for 
coin,  we  find  nothing  in  the  case  which  takes  it  out  of  the  operation 
of  the  Act  of  Congress  in  relation  to  legal  tender  notes.  Kailroad 
fares  are  not  taxes,  and  do  not  fall  within  the  rule  in  Perry  v. 
Washburn,  20  Cal.  318. 

Whether  the  defendant  could  have  legally  exacted  payment  in  ; 
coin  before  the  plaintiff  was  admitted  into  the  cars  and  the  journey 
commenced,  is  a  question  not  involved  in  this  case,  and  upon  which 
we  express  no  opinion.  Having  received  the  plaintiff  and  proceeded 
several  miles  upon  the  journey,  the  defendant  must  be  held  to  have 
consented  to  receive  in  payment  of  the  fare  any  good  and  lawful 
money  which  the  plaintiff  might  tender  when  called  upon  for  pay- 
ment. The  kind  of  money  to  be  paid  had  then  ceased  to  be  an  open 
question,  for  the  contract  was  already  made,  and  in  process  of 
performance. 

The  verdict,  however,  was  excessive.  No  special  damages  were 
alleged  or  proved.  It  is  not  pretended  that  this  is  a  case  for  puni- 
tive damages,  or  that  the  business  of  the  plaintiff  suffered  in  any 


544  CARRIERS   OF   PASSENGERS. 

way  by  reason  of  his  not  being  taken  to  Colfax.  It  does  not  appear 
whether  the  phiintiff  proceeded  on  to  Colfax  or  returned  to  Auburn 
after  he  was  put  out  of  the  cars,  or,  whichever  he  did,  if  he  did 
either,  that  he  was  put  to  any  expense  in  doing  it.  Whether  the 
plaintiff  was  going  to  Colfax  upon  urgent  business  or  merely  for 
pleasure  is  not  shown.  In  short,  there  is  no  evidence  in  the  tran- 
script which  has  any  bearing  upon  the  question  of  damages  except 
the  naked  fact  that  he  was  put  out  of  the  cars  at  a  point  ten  or 
twelve  miles  from  the  place  of  his  destination,  and  about  five  from 
the  place  of  his  departure.  Such  being  the  only  evidence  bearing 
upon  the  question,  we  think  the  verdict  greatly  disproportionate  to 
the  injury  proved,  within  the  rule  in  Aldrich  v.  Palmer,  24  Cal.  513. 
A  new  trial  must  be  granted,  unless  the  plaintiff  elects,  within 
fifteen  days,  to  take  a  judgment  for  one  hundred  dollars,  which  sum 
we  think  amply  sufficient  compensation  for  the  injury  which  he 
sustained. 


WILTON   V.    MIDDLESEX  E.    CO. 
107  Mass.  108.     1871. 

Tort  for  personal  injuries  alleged  to  have  been  sustained  by  the 
plaintiff  through  the  negligence  of  defendant's  servant.  Defendant 
was  a  street  railroad  corporation. 

At  the  trial,  the  plaintiff  offered  to  prove  "that  on  July  16,  1868, 
at  which  time  she  was  nine  years  of  age,  she  went  out  about  seven 
o'clock  in  tlie  evening  to  walk;  that  she  was  in  company  with  four 
or  five  other  girls,  on  the  Charlestown  bridge,  and  near  the  draw, 
and  one  of  the  defendant's  cars  came  along  very  slowly  ;  that  there 
were  no  passengers  on  the  platform,  and  the  driver  beckoned  to  the 
girls  to  get  on,  and  they  accordingly  got  on  the  platform,  while  the 
car  was  going  slowly;  that  the  driver  then  struck  his  horses,  and 
they  started  on  a  fast  trot;  that  the  plaintiff  had  one  foot  on  the 
stej),  and  by  reason  of  the  sudden  start  lost  her  balance;  that  she 
called  t(j  the  driver  to  stop,  but  the  car  kept  on,  ami  slic  fell  so  that 
one  of  the  wheels  jjassed  over  her  arm,  and  she  was  ol)liged  to  have 
it  amputateil;  and  that  she  used  due  care  and  the  driver  was  care- 
less." It  was  admitted  that  the  driver  had  no  authority,  unless 
implied  from  his  position,  to  invite  persons  to  ride  free,  and  that 
defendant  was  not  a  passenger  for  hire.  Upon  the  plaintiff's  offer 
of  proof,  the  case  was  reserved  for  the  consideration  of  the  full 
C'jurt;  if  the  plaintiff  was  entitled  to  n^covcr  thereon,  the  case  to 
Stand  for  trial;  otherwise,  judgment  to  l)e  given  for  the  defendant. 

MoHToN,  J.  Tlie  plaintiff  was  injur(;d  while  riding  upon  one  of 
the  defendant's  cars.     At  the  trial  slic  offered  to  prove  that  she  wa? 


WHO   DEEMED   PASSENGERS.  545 

in  the  exercise  of  due  care,  and  that  the  driver  of  the  car  was  care- 
less. For  the  purposes  of  this  hearing,  therefore,  we  are  to  assume 
that  she  was  injured  by  the  negligence  of  a  servant  of  the  defend- 
ants, in  the  course  of  his  employment;  and  that  her  own  want  of 
care  did  not  contribute  to  the  injury.  It  follows,  that  she  can  main- 
tain this  action;  unless  we  sustain  the  position  taken  by  the  defend- 
ants, that  she  was  unlawfully  upon  the  car,  and,  therefore,  not 
entitled  to  recover. 

The  facts  which  the  plaintiff  offered  to  prove,  bearing  upon  this 
question,  are  as  follows :  The  plaintiff',  a  girl  of  nine  years  of  ai;e, 
was  walking  with  several  other  girls  upon  the  Charlestown  bridge, 
about  seven  o'clock  in  an  evening  m  July.  One  of  the  defendant's 
cars  came  along  very  slowly,  and  the  driver  beckoned  to  the  girls 
to  get  on.  They  thereupon  got  upon  the  front  platform.  It  was 
admitted  that  the  plaintiff  was  not  a  passenger  for  hire,  and  that 
the  driver  had  no  authority  to  take  the  girls  upon  the  car  and  carry 
them,  unless  such  authority  is  to  be  implied  by  the  fact  of  his 
employment  as  a  driver. 

Upon  these  facts,  it  is  clear  that  it  would  be  competent  for  the 
jury  to  find  that  the  beckoning  by  the  driver  was  intended  and 
understood  as  an  invitation  to  the  plaintiff  to  get  upon  the  car  and 
ride.  In  accepting  this  invitation  and  getting  upon  the  car,  we_ 
think  she  was  not  a  trespasser,  there  being  no  evidence  of  collusion 
between  her  and  the  driver  to  defraud  the  corporation, 

A  master  is  bound  by  the  acts  of  his  servants  in  the  course  of 
his  employment.  They  are  deemed  to  be  tne  acts  ot  the  master. 
Eamsden  v.  Boston  &  Albany  Railroad  Co.,  104  Mass.  117,  and  cases 
cited.  The  driver  of  a  horse-car  is  an  agent  of  thp  p.nrpm'nt.inn^  Ti^,y- 
ing  charge,  in  part,  of  the  car.  If,  in  violation  of  his  instructions, 
he  permits  persons  to  ride  without  pay,  he  is  guilty  of  a  breach  of 
his  duty  as  a  servant.  Such  ant  is  not  on^  outside  of  his  duties. 
but  is  an  act  within  the  general  scope  of  his  agency,  for  which  he  is 
responsible  to  his  master.  In  the  case  at  bar,  the  invitation  to  the 
plaintiff  to  ride  was  an  act  within  the  general  scope  of  the  driver's 
employment,  and  if  she  accepted  it  innocently  she  was  not  a  tres- 
passer. It  is  immaterial  that  the  driver  was  acting  contrary  to  his 
instructions. 

It  follows,  that  the  plaintiff  being  lawfully  upon  the  car,  though 
she  was  a  passenger  without  hire,  is  entitled  to  recover,  if  she  proves 
that  she  was  using  due  care  at  the  time  of  the  injury  and  that  she 
was  injured  by  the  negligence  of  the  driver.  Philadelphia  &  Reading 
Railroad  Co.  v.  Derby,  14  How.  468,  483. 

In  the  present  aspect  of  the  case,  we  are  not  called  upon  to  con- 
sider to  what  extent  the  defendants  might  be  held  liable  if  it  were 
shown  that  the  plaintiff  was  unlawfully  riding  upon  the  car. 

Case  to  stand  for  trial. 
35 


546  CAKKIEKS   OF   PASSEXGERS 

WATERBURY   v.  NEW   YORK  CENTRAL,    etc.,   R.   CO. 
17  Fed.  Rep.  (U.  S.  C  C.)  G71.     1683. 

Wallace,  J.  The  plaintiff  sued  for  personal  injuries  sustained, 
as  he  alleged,  by  the  negligence  of  the  defendant,  and,  having 
recovered  a  verdict,  the  defendant  moves  for  a  new  trial.  The 
]daintitf  was  riding  on  an  engine  of  the  defendant,  when,  in  conse- 
qui-iiff  of  a  mis|ilaced  switch,  it  was  thrown  from  the  track,  and  he 
"was  inj'urt,-d.  Tlicri-  was  no  evidence  on  tlie  trial  of  any  (.'.\]iress 
contract  between  the  parties  creating  the  relation  of  ])assenger  anj.i 
carrier,  but  it  api^eared  that  on  various  prior  occasions  the  ]ilaintiff_ 
anl  ntliiT  drovers  whose  cattle  were  bi-iiiu''  transi'eried  from  ^\"est 
Al'oanv  to  East  AUxiiiy  liv  tlie  tlefeiidaut.  liad  liecn  permitttnl  by  the 
eniplovees  ot  the  <Iei'eiidant  to  areiiiniiany  their  cattle  by  tlie  same 
tram,  —  sometimes  on  tlie  cars  of  the  cattle  train,  and  sometimes  on 
the  engine.  At  times  tlie  trains  were  delaved  between  tliese  ]ioints 
and  the  cattle  rei|uired  attention,  and  as  no  employee  of  the  defend- 
ant was  assi'Mii'd  to  tlie  dutv  of  looking  after  tlie  cattle,  it  seemed 
to  he  assunu-il  Ijetweeii  the  employees  of  the  detendant  and  the 
drovers  that  tlie  latter  should  look  after  their  own  cattle.  Ui'oji 
the  occasion  in  question  the  plaintilf  and  another  drover  uot  u])on 
the  engine,  there  beini.^  none  but  box-cars  on  the  train.  1'lie  ein;iiiet7' 
ini[uirc<l  if  they  had  cattle  on  the  train,  and  beiii'^--  inb)rnied  that 
such  was  the  fai-t.  iiiailc  no  oliji'ction  to  their  riiliiig  upon  the  engine. 
It  was  shown  for  the-  deb/iidaiit  that  its  rules  for  the  government  of 
its  eiujiloyces  forbade  them  from  permitting  any  person  to  ride  upon 
the  engine. 

At  the  trial  it  was  left  to  the  jury  to  determine  as  questions  of 
fact  whether  tlie  plaintiff  was  a  trespasser  or  a  passenger;  whether 
there  was  negligence  on  the  jiart  of  the  defendant;  and  whether 
there  was  contributory  negligence  on  the  part  of  the  jdaintiff.  The 
jury  were  instructed  in  substance  that  if  the  jilaintiff  knew  he  was 
riding  upon  the  engine  in  contravention  of  the  rules  of  the  defend- 
ant he  was  a  trosjiasser,  and  in  that  case  the  defendant  was  not 
responsible  for  the  injury.  'J'hey  were  also  instructed  tliat  if  they 
found  lie  was  riding  upcni  the  engine  pursuant  to  an  implied  untler- 
.standing  between  hims(df  and  the  defendant  that  he  should  accom- 
cattle  in  order  to  take  care  of  them  on  the  w;iy,  he  was  a 
■  r;  and  that  if  he  was  a  passenger,  and  entitlccl  to  accom- 
nuKlatiuns  as  such,  the  defendant  was  not  at  lilierty  to  assert  that 
he  was  guilty  of  negligence  in  riding  ujion  the  engine,  if  the 
defendant  liad  provided  no  safer  jdace  f(»r  him  to  ride. 

A  !iination  of  the  evidence  .sliows  quite  satisfactorily 

tluit  i  not  justify  the  assumption  in  any  as^jcct  of  it  that 


WHO   DEEMED   PASSENGERS.  547 

the  plaintiff  was  entitled  to  be  carried  as  a  passenger,  as  an  implied 
condition  of  the  contract  to  carry  his  cattle.  The  most  that  can  be 
fairly  claimed  for  the  plaintiff  upon  the  evidence  is  that  he  was 
riding  upon  the  engine  permissively.  If  he  was  riding  there  with 
the  consent  of  the  defendant,  express  or  implied,  it  is  not  material, 
so  far  as  it  affects  the  defendant's  liability  for  negligence,  whether 
he  was  there  as  a  matter  of  right  or  a  matter  of  favor,  —  as  a  pas- 
senger or  a  mere  licensee.  It  suifices  to  enable  him  to  maintain  an 
action  for  negligence  if  he  was  being  carried  by  the  defendant  volun- 
tarily, it  tne  defendant  undertook  to  carry  him,  although  gratui- 
tously, and  as  a  mere  matter  of  favor  to  himself,  it  was  obligated  to 
exercise  due  care  for  his  safety  in  performing  the  undertaking  "It 
had  voluntarily  assumed.  Philadelphia,  &c. ,  R.  Co.  v.  Derby,  14 
How.  468;  Steamboat  New  World  v.  King,  16  How.  469  [572].  The 
carrier  does  not,  by  consenting  to  carry  a  person  gratuitously,  relieve 
himself  of  responsibility  for  negligence.  When  the  assent  to  his 
riding  free  has  been  legally  and  properly  given,  the  person  carried 
is  entitled  to  the  same  degree  of  care  as  if  he  paid  his  fare.  Todd 
V.  Old  Colony,  &c.,  R.  Co.  3  Allen,  18.  As  is  tersely  stated  by 
Blackburn,  J.,  in  Austin  v.  Great  Western  Ry.  Co.  15  Weekly  Rep. 
863,  "  the  right  which  a  passenger  by  railway  has  to  be  carried  safely 
does  not  depend  on  his  having  made  a  contract,  but  the  fact  of  his 
being  there  creates  a  duty  on  the  part  of  the  company  to  carry  him 
safely." 

The  real  question  in  the  case  was  lost  sight  of  upon  the  trial.  ' 
That  question  was  whether  the  plaintiff  was  being  carried  upon  the 
engine  with  the'consent  of  the  defendant,  or  only  by  the  unauthorized 
permission  or  invitation  of  the  defendant's  employees.  This  ques- 
tion was  not  presented  by  the  exceptions  to  the  charge  or  by  the  ' 
instructions  which  the  court  was  asked  to  give  to  the  jury.  But 
upon  the  theory  on  which  the  case  was  presented  the  jury  must  have 
found  that  the  plaintiff  had  a  right  to  be  carried  by  the  defendant  as 
an  implied  condition  of  the  contract  for  the  transportation  of  his 
cattle.  As  the  evidence  does  not  warrant  such  a  conclusion,  and  as 
the  real  question  in  the  case  has  not  been  passed  upon  by  the  jury, 
there  should  be  a  new  trial  upon  the  ground  of  misdirection,  although 
the  defendant's  exceptions  do  not  reach  the  error. 

It  should  have  been  left  to  the  jury  to  determine,  as  a  question 
of~fact,  whether  the  defendant  had  by  its  concluct  held  out  its 
employees  to  the  plaintiff  as  authorized,  under  the  circumstances, 
to  consent  to  his  being  carried  on  the  train  with  his  cattle.  Un^ 
doubtedly  the  presumption  of  law  is  that  persons  riding  upon  trains 
of  a  railroad  carrier,  which  are  palpably  not  designed  for  the  trans- 
portation of  pPTsons.  are  not  lawfully  there;  and  if  they  are  per- 
mitted to  be  there  bv  the  consent  of  the  carrier's  employees,  the 
presumption  is  a?fiiiist  the  n.nthoritv  of  the  employees  to  bind  the 
eavrier  by  sneh  consent. 


548  CARRIERS   OF   PASSENGERS. 

In  Eaton  v.  D.,  L.  »S:  \V.  R.  Co.,  57  X.  Y.  382,  it  is  held  that  the 
conductor  of  a  freight  train  has  no  authority  to  consent  to  the  carry- 
int'  of  a  person  upon  a  caboose  attached  to  such  train,  but  designed 
for  the  accommodation  of  employees,  and  in  such  case  the  presump- 
tion is  that  the  person  carried  is  not  lawfully  there.  On  the  other 
hand,  this  presumption  may  be  overthrown  by  the  special  circum- 
stances, as  in  the  case  of  Ohio  &  Miss.  R.  Co.  v.  ]\Iuhling,  30  111. 
9,  where  the  plaintiff  was  riding  on  a  construction  train,  and  in  the 
cases  of  Ryan  v.  Cumberland  Valley  R.  Co.,  23  Pa.  St.  3S4  [538]  and 
Gillshannon  v.  Stony  Brook  Co.,  10  Cush.  228  [536],  wla-re  the 
plaintiff  was  riding  on  a  gravel  train. 

So,  in  a  case  like  the  present,  where  the  railroad  carrier  may 
dt-'rive  some  benetit  from  the  i)resence  of  drovers  upon  its  cattle 
trains,  and  niav  have  allowed  its  emidovees  in  chanre  of  such  trains 
t"  invite  or  ]KM-niit  drovers  to  acconiiianv  tlieir  cattle,  the  presuniL'- 
tion  against  a  license  to  tlie  ])erson  thus  carried  nuiv  be  overthrcjwn. 
It  shouM  have  been  lelt  tu  tlie  jurv  to  tleterniiiie.  as  a  r|uestion  of 
tact,  wliether,  notwithstandini,^  its  rules  for  the  government  of  its 
employees,  the  defendant  hail  not  held  them  out  to  the  ])]aintiff  as 
liavini:  authority  to  consent  to  his  beint:  carried.  If  it  should  ai)]iear 
that  its  em])loyees  have  l)een  accustomed  to  allow  drovers  to  aceom- 
]iany  their  cattle  on  the  cattle  trains  so  generally  anil  constantly 
that  the  otHcers  of  the  comjiany  must  have  known  it,  the  consent  oi 
tlie  company  liiay  be  predicated  upon  accjuiescence  and  ratification. 

A  new  trial  is  granted. 


DUFF  V.   ALLEGHANY   VALLEY   R.    CO. 

91  Penn.  St.  458.     1870. 

Per  Curiam.  This  was  an  action  by  a  parent  to  recover  damages 
for  tlie  death  of  her  son  on  account  of  the  alleged  negligence  of  the 
defendants.  It  is  clear,  from  tin-  evidence,  tliat  the  l)oy  was  on  the 
train  from  da}*  to  day,  not  as  a  passen;;er  or  employee  of  tlie  roni- 
pany,  but  ]>y  the  connivance  of  the  conductor^  in  order  to  sell  new.sj 
;ia].ers.  It  is  not  like  a  jierson  allowed  jjy  the  conductor  to  ride  in 
a  ear  as  a  i)assenger  without  jtaying  fare.  In  that  case  there  is  a 
!'•  vd  liability  to  the  comj)any  for  tlie  fare.  This  is  th(^  case  of  a 
er^jind^  tl^ie_cgmj3i3JAy  oi^Gd  him  no  dutx-  '^Ve~arc~oT 
'.J..,-,  M,    i,,.,.  the  rulings  of  the  learned  judge  below  were  right. 

Jiiilijvicnt  ajjirvied. 


WHO   DEEMED   PASSENGERS.  549 


ST.   JOSEPH,    ETC.,  K.    CO.   v.    WHEELER. 
35  Kan.  185.     1886. 

Action  by  De  "Witt  C.  Wheeler,  as  administrator  of  the  estate  of 
Frank  Wheeler,  deceased,  against  The  Eailroad Company, to  recover 
damages  for  the  benefit  of  the  next  of  kin  of  the  decedent,  whose 
death  is  alleged  to  have  been  caused  by  the  negligence  of  the 
defendant.  Trial  at  the  December  Term,  1884,  and  judgment  for 
plaintiff  for  $1500.  The  company  brings  the  case  here.  The  mate- 
rial facts  are  stated  in  the  opinion. 

Johnston,  J.  De  Witt  C.  Wheeler,  as  administrator  of  the  estate 
of  Frank  Wheeler,  deceased,  brought  this  action  under  §  422  of  the 
Civil  Code,  to  recover  damages  for  the  benefit  of  the  next  of  kin  of 
Frank  Wheeler,  whose  death,  it  is  alleged,  was  caused  by  the  gross 
carelessness  and  negligence  of  the  St.  Joseph  &  Western  Railroad 
Company.  There  was  but  little  dispute  concerning  the  facts  of  the 
case.  On  June  17,  1881,  the  defendant  below  was  operating  a  rail- 
road which  runs  from  Elwood  westward  through  Doniphan  and  other 
counties  of  Kansas  to  Grand  Island,  Nebraska.  On  that  day  a  work 
or  construction  train  with  a  caboose  car  attached,  was  sent  from 
Elwood  to  a  point  near  Troy,  for  the  purpose  of  being  loaded  with 
dirt  to  be  brought  back  for  the  repair  of  the  road-bed  between 
Wathena  and  Elwood,  with  instructions  to  work  until  ten  o'clock 
in  the  morning  without  regard  to  train  No.  7,  a  freight  train  going 
west.  While  the  train  was  being  loaded.  Frank  Wheeler,  in  com- 
pany with  another  boy,  came  up  to  the  construction  train,  and  learn- 
ing that  it  was  soon  going  eastward,  asked  the  conductor  if  he  might 
ride  back.  The  conductor  consented,  and  Frank  Wheeler  rode  in  the 
caboose  car  with  other  persons  that  belonged  to  the  train.  He  paid 
no  fare,  and  was  not  asked  or  expected  to  pay  any.  Soon  after  he  was 
taken  on,  the  construction  train  backed  eastwardly  toward  Wathena, 
and  before  reaching  that  place,  and  at  9.45  a.m.  of  that  day,  it  col- 
lided with  the  engine  of  train  No.  7  going  westward,  in  which  col- 
lision Frank  Wheeler  was  killed.  The  conductor  of  the  constructioji 
train  had  instructions  from  the  railroad  company  not  to  allow  per- 
sons as  passengers  to  ride  upon  his  train  except  those  who  belong'ecr 
to  it,  but  this  instruction  was  not  communicated  to  Frank  Wheeler. 
Upon  these  and  some  other  facts  which  were  shown  upon  the  trial, 
a  verdict  for  $1500  was  given  in  favor  of  the  plaintiff. 

One  of  the  questions  raised  is,  that  there  was  no  correspondence 
between  the  pleadings  and  the  evidence.  The  point  is  made  that 
the  plaintiff  alleged  that  Frank  Wheeler  was  a  passenger, —  a  term 
which  it  is  claimed  implied  that  Frank  Wheeler  was  travelling  in  a 


550  CARRIERS   OF   PASSENGERS. 

public  conveyance  by  virtue  of  a  contract,  express  or  implied,  with 
the  carrier,  as  the  payment  of  fare,  or  that  which  is  accepted  as  an 
equivalent  therefor,  while  the  evidence  offered  showed,  that  he  was 
carried  on  a  train  not  designed  for  passengers,  that  no  fare  was  col- 
lected or  expected  to  be  paid,  and  therefore  that  he  did  not  stand 
toward  the  company  in  the  relation  of  a  passenger.  This  is  one 
sense  in  which  the  term  is  used,  but  not  the  only  one.  It  is  com- 
monly applied  to  any  one  who  travels  in  a  conveyance,  or  who  is 
carried  upon  a  journey,  irrespective  of  the  character  of  tlie  convey- 
ance or  of  compensation  to  the  carrier.  While  the  plaintiff  alleged 
that  Wheeler  was  carried  as  a  passenger,  he  nowhere  averred  that 
he  was  carried  for  hire,  nor  can  it  be  said  that  the  petition  was 
framed  upon  the  theory  that  there  was  a  contract  relation  between 
deceased  and  the  company.  It  was  rather  upon  the  theory  that  he 
was  not  a  trespasser  upon  the  defendant's  train,  and  it  is  specially 
alleged  that  he  was  upon  the  train  with  the  knowledge  and  consent 
of  the  conductor.  From  this  averment  it  is  manifest  that  the 
pleader  did  not  rely  upon  any  agreement  between  the  company  and 
Wheeler,  and  did  not  intend  to  hold  the  company  to  extraordinary 
care,  as  it  would  be  held  in  carrying  persons  who  were  passengers 
in  a  strictly  legal  sense;  but  rather,  that  as  Wheeler  was  upon  the 
train  with  the  consent  of  the  conductor,  he  was  not  wrongfully 
there,  and  the  company  owed  him  the  duty  of  ordinary  care.  The 
action  was  founded  upon  the  neglect  of  the  company  and  not  upon 
the  breach  of  a  contract;  and  allegations  of  the  relation  which  he 
occupied  toward  the  company  are  only  material  for  the  purpose  of 
determining  and  fixing  the  grade  of  care  owing  to  him  by  the  com- 
pany. As  we  interpret  the  petition,  it  did  not  allege  that  the  rela- 
tion of  carrier  and  passenger  existed  by  reason  of  an  agreement 
between  the  deceased  and  the  company,  and  therefore  that  there  was 
no  suVjstantial  variance  between  the  pleadings  and  the  evidence. 

A  series  of  instructions  were  prepared  V)y  the  railroad  company 
and  disallowed  by  the  court,  and  their  refusal  is  assigned  as  error. 
Most  of  them  in  effect  instructed  a  verdict  in  favor  of  the  defendant, 
and  asserted  that  the  company  cannot  be  held  liable  for  injury  to 
one  who  rides  upon  a  construoticm  train  with  the  consent  of  the  con- 
ductor, and  who  is  not  a  passenger  in  tlie  ordinary  sense.  They 
were  properly  refused.  We  concur  witli  tlie  view  of  tlie  law  taken 
by  the  trial  judge  where  he  states  that:  — 

"  Under  the  admitted  facts  and  the  evidence  in  the  case  tlie  snid 
Frank  Wheeler  was  not  a  tresyjasser  u])f)n  tlie  defendant's  train, 
although  he  was  not  in  legal  contemplation  a  passenger.  A  com- 
mon carrier  of  passengers  is  Ixmnd  to  exercise  extraordinary  care 
towards  its  passengers,  and  is  liable  for  slight  negligence,  but  it 
(lf>cs  not  owe  the  same  degree  of  care  to  a  person  on  one  of  its 
••  •  "      "  lins,  who  does  not  stand  in  the  r<dation  of  a  passenger. 

1  lis  a  carrier  owes  only  th(!  duty  of  ordinary  care,  wliich 


WHO    DEEMED    PASSENGERS.  551 

is  that  degree  of  care  which  persons  of  ordinary  prudence  would 
usually  exercise  under  like  circumstances." 

It  is  contended  that  Frank  Wheeler  was  an  intruder  upon  the 
train,  for  whose  injury  no  liability  could  arise  against  the  company, 
for  two  reasons:  First,  that  the  conductor  had  instructions  not  to 
carry  passengers  on  tlie  construction  train;  and  second,  thatjrom 
the  nature  ot  the  business  which  was  being  done  with  the  train, 
and  also  its  equipment^  it  was  apparent  that  the  company  did  not 
permit  passengers  to  be  carried  thereon.  Neither  of  these  circum- 
stances will  defeat  a  recovery  in  this  case.  It  is  true  the  conductor 
had  been  instructed  not  to  allow  persons  to  ride  upon  his  train  as 
passengers^  but  Frank  Wheeler  had  no  knowledge  of  such  instruc- 
tion. He  had  asked  and  obtained  permission  to  ride  upon  the  train. 
It  was  within  the  range  of  the  employment  of  the  conductor  to  grant 
such  permission.  He  had  entire  charge  of  the  train,  and  Avas  the 
general  agent  of  the  comijanv  in  the  operation  of  the  train.  As  he 
was  the  representative  of  the  company,  his  act,  and  the  permission 
given  by  him,  may  properly  be  regarded  as  the  act  of  the_company_. 
If  Wheeler  had  furtively  entered  upon  the  train,  or  had  ridden  after 
being  informed  that  the  rules  of  the  company  forbade  it,  or  had 
obtained  permission  only  from  the  engineer,  brakeman,  or  some 
other  subordinate  employee,  the  argument  made  by  counsel  might 
apply. 

In  Dunn  v.  Grand  Trunk  Rly.,  58  Me.  187,  the  plaintiff  went  on 
board  a  freight  train  with  the  knowledge  of  the  conductor.  One  of 
the  regulations  of  the  company  prohibited  conductors  from  allowing 
passengers  to  travel  upon  its  freight  trains.  He  was  not  directed  or 
requested  to  leave,  but  paid  the  usual  fare  to  the  conductor,  and 
during  the  journey  the  car  upon  which  he  rode  was  thrown  from 
the  track  and  he  was  thereby  injured.  The  court  held  that  under 
the  circumstances  he  had  a  right  to  suppose  himself  rightfully  on 
board,  and  that  if  the  act  of  the  passenger  did  not  conduce  to  the 
injury  received,  the  company  was  responsible  for  the  consequences 
of  its  negligence  or  want  of  care.  C.  &  A.  Rid.  Co.  v.  ]\lichie, 
Adm'x,  83  111.  427,  was  an  action  by  the  administratrix  to  recover 
damages  for  the  death  of  her  husband,  which  occurred  while  he  was 
riding  upon  an  engine.  The  rules  of  the  company  provided  that 
■  no  persons  except  the  road  master  and  conductor  of  the  train  were 
allowed  to  ride  on  the  engine  without  the  permission  of  the  super- 
intendent or  master  mechanic.  He  applied  to  the  engine  driver  and 
was  given  permission  to  ride.  It  was  ruled  that  the  driver  of  the 
engine  occupied  only  a  subordinate  position,  and  that  his  permis- 
sion was  not  the  permission  of  the  company,  as  he  had  no  power  to 
give  it ;  but  it  was  added  that  — 

"Had  the  conductor  of  the  train  given  the  permission,  or  knowing 
the  deceased  was  upon  the  engine  suffered  him  there  to  remain,  it 
might  be  considered  the  act  of  the  company,  as  the  conductor  has 


552  CAKKIERS    OF    PASSENGERS. 

control  of  the  entire  train,  and  his  act  is  rightfully  regarded  as  the 
act  of  the  company.'' 

In  the  case  of  Wilton  v.  Middlese.\  Kid.  Co.,  107  Mass.  lOS  [544], 
several  young  girls  were  invited  by  the  driver  to  ride  upon  one  of 
the  defendant's  cars.  They  got  upon  the  front  platform,  and  the 
driver  immediately  struck  his  horses,  when,  by  reason  of  their  sud- 
denly starting,  the  plaintiff  lost  her  balance  and  fell  so  that  one  of 
the  wheels  passed  over  her  arm.  It  was  admitted  that  the  plaintiff 
was  not  a  passenger  for  hire,  and  that  the  driver  had  no  authority  to 
take  the  girls  upon  the  car  unless  such  authority  was  implied  from 
the  fact  of  his  employment  as  driver.  In  deciding  the  case  the  court 
said:  — 

•*  The  driver  of  a  horse-car  is  the  agent  of  the  corporation  having 
charge  in  part  of  the  car.  If,  in  violation  of  his  instructions,  he 
permits  persons  to  ride  without  pay,  he  is  guilty  of  a  breach  of  his 
duty  as  a  servant.  Such  act  is  not  one  outside  of  his  duty,  but  is 
one  within  tiie  general  scope  of  his  agenc}',  for  which  he  is  respon- 
sible to  his  master.  In  the  case  at  bar,  the  invitation  to  the  plain- 
tiff to  ride  was  an  act  within  the  general  scope  of  the  driver's 
employment,  and  if  she  accepted  it  innocently,  she  was  not  a  tres- 
passer. It  is  immaterial  that  the  driver  was  acting  contrary  to  his 
instructions." 

In  Lucas  v.  :Milwaukee  &  St.  P.  Kly.  Co.,  33  ^Yis.  53,  it  was  held 
that  if  a  person  rode  upon  a  freight  train  without  authority  from 
some  person  competent  to  give  it,  he  would  have  been  unlawfully 
there,  and  could  not  have  successfully  enforced  the  rights  of  a  pas- 
senger against  the  company,  but  the  company  had  authorized  the 
carriage  of  passengers  upon  some  of  its  freight  trains,  and  tiierefore 
a  different  ruling  was  applied.     It  was  stated  that  — 

"By  making  a  portion  of  its  freight  trains  lawful  passenger  trains, 
the  defendant  has,  so  far  as  the  public  is  concerned,  ap])arently  given 
the  conductors  of  all  its  freight  trains  authority  to  carry  passengers, 
and  if  any  such  conductor  has  orders  not  to  carry  passengers  upon 
his  train,  they  are  or  may  be  in  the  nature  of  secret  instructions 
limiting  and  restricting  his  apparent  authority,  and  third  persons 
arc  not  bound  by  such  instructions  until  informed  thereof." 

In  support  of  the  same  view,  we  cite  Jacobus  v.  St.  l*anl  &  Chicago 
Itly.  Co.,  20  Minn.  IL'.",  [657]:  o.  &  M.  Hid.  Co.  r.  Muhliii-,  .".(i  111. 
♦J;  Gradin  «.  St.  J'aul  ^V-  Duluth  lily.  Co.,  30  Minn.  '_'17:  11  Am. 
and  Kng.  Kid.  Ca-ses,  G44;  Lawson  v.  C.  St.  1'.  M.  \  ( ).  KM.  (,'o., 
21  Am.  and  Kng.  Kid.  Cases,  240. 

K;iton  V.  1).  &  L.  W.  Kid.  Co.,  57  X.  Y.  .'iS.'},  is  relied  upon  as  an 
authority  for  the  position  assumed  by  the  comi)any.  The  circum- 
stances of  that  case  are  not  like  the  one  before  us,  and  the  decision 
i.H  ba.Hed  on  the  special  circumstances  of  the  case.  It  differs  inate- 
ri:illy  in  its  f:icts  from  the  one  at  b:ir.  'I'liere,  the  party  injured  was 
iiivilc(l  by  the  eonduetor  to  ride  U]>on  a  freight  trjiin  with  the  jjromise 


WHO    DEEMED    TASSENGERS.  553 

to  get  him  employment  as  a  brakeman;  and,  besides,  it  did  not 
appear  that  passengers  were  either  habitually  or  occasionally  per- 
mitted to  ride  upon  the  freight  trains  of  that  company.  Here, 
although  disputed,  it  was  satisfactorily  shown  that  passengers  were 
not  only  occasionally  but  commonly  carried  upon  the  freight  and 
construction  trains  of  the  defendant.  A.  J.  Shuster,  who  was 
employed  upon  the  construction  train  at  the  time  that  Frank 
Wheeler  was  killed,  testified  that  passengers  were  carried  upon  that 
train  under  certain  circumstances.  Albert  Hinchman,  who  had 
been  on  the  train  three  or  four  months,  stated  that  the  company 
had  always  carried  passengers  on  all  its  freiglit  trains  while  he  was 
upon  the  road,  and  the  passengers  had  frequently  ridden  on  the  con- 
struction train,  and  had  frequently  been  taken  on  at  points  other 
than  stations  where  the  train  was  at  work.  Henry  Wheeler  states 
that  prior  to  the  accident  he  rode  upon  the  construction  train  to 
Wathena,  and  paid  fare  to  the  conductor  for  such  ride.  A.  J. 
Mowry,  who  travelled  a  great  deal  upon  defendant's  road,  testified 
that  it  was  usual  to  carry  passengers  on  all  caboose  cars;  that  he 
rode  on  every  kind  of  train  that  was  ever  on  the  road,  and  had  ridden 
on  defendant's  construction  trains  before  June  17,  1881,  and  paid 
fare  to  the  conductor.  It  will  thus  be  seen  that  it  was  customary 
for  passengers  to  ride,  with  the  permission  of  the  conductor,  upon 
all  freight  and  construction  trains  upon  the  defendant's  road;  and 
the  New  York  case,  while  similar  in  some  of  its  features,  is  not  an 
authority  here.  Persons  not  informed  of  the  instructions  given  to 
the  conductor,  had  a  right,  under  this  prevailing  practice,  to  assume 
that  the  conductor  had  authority  to  carry  passengers  on  the  construc- 
tion train,  and  that  the  granting  of  permission  by  him  in  such  cases 
fell  within  his  general  authority  as  manager  of  the  train.  Nor  was 
there  anything  in  the  exterior  appearance  of  the  car  in  which  the 
deceased  rode  to  notify  him  that  passengers  were  not  carried  therein. 
The  testimony  is  that  it  was  a  caboose  car  similar  in  construction 
and  appearance  to  those  which  were  attached  to  all  of  defendants' 
freight  trains,  and  upon  which,  as  has  been  seen,  passengers  were 
carried. 

The  railroad  company  asked  an  instruction  that  if  the  father  of  ( 
Frank  Wheeler  had,  prior  to  the  accident,  relinquished  unto  him^ 
the  right  to  his  time  and  services  during  his  minority,  and  that  this  \ 
relinquishment  was  unrevoked  at  his  death,  the  plaintiff  can  recover  ' 
only  nominal  damages.     It  was  properly  rejected.     In  such  an  action 
the  plaintiff  does  not  sue  for  his  own  benefit,  but  only  as  the  per- 
sonal representative  of  the  deceased.     The  damages  recovered  inure 
to  the  exclusive  benefit  of  the  widow  and  children  if  there  are  an}', 
and  if  not,  to  the  next  of  kin.     In  this  case  the  damages  were  for 
the  benefit  of  the  next  of  kin,  who  were  the  father  and  the  mother 

The  sum  to  be  recovered  was  therefore  not  for  the  benefit  of  the 
father  alone,  who  may  have  made  the  relinquishment,  but  for  the 


:•! 


554  CARRIERS   OF   PASSENGERS. 

mother  also.  Besides,  parents  may  recover  for  the  death  of  a  chihi 
who  has  attained  his  majority  if  they  can  prove  any  pecuniary 
damages  resulting  therefrom,  such  as  the  loss  of  support.  In  esti- 
mating the  pecuniary  benetit  which  would  accrue  to  his  parents  by 
the  continuance  of  his  life,  the  fact  that  the  parents  relinquished  to 
Frank  Wheeler  his  time  and  services  during  his  minority  was  an 
element  which  might  properly  be  taken  into  consideration,  and  this 
much  was  stated  to  the  jury. 

Xone  of  the  other  objections  raised  are  at  all  tenable,  and  as  the 
charge  given  fairly  presented  the  law  of  the  case  to  the  jury,  the 
errors  assigned  will  be  overruled,  and  the  judgment  will  be  affirmed. 


r 


TOLEDO,    ETC.,    R.    CO.    v.   BROOKS. 
81  111.  245.     1876. 

This  was  an  action  on  the  case,  by  Julia  A.  Brooks,  administra- 
trix of  the  estate  of  William  H.  Brooks,  deceased,  against  the 
Toledo,  Wabash  and  Western  Railway  Company,  to  recover  damages 
for  causing  the  death  of  plaintiff's  husband  and  intestate,  through 
negligence.  A  trial  was  had,  resulting  in  a  verdict  and  judgment 
in  favor  of  plaintiff,  for  $31G6. 

Mr.  JusTicK  Walkkk.     ........ 

It  is  urged  that  the  court  erred  in  refusing  to  give  the  ninth  or 
some  one  of  the  other  instructions  asked  by  plaintiff  in  error,  but 
refused  by  the  court.  That  instruction  assorts  tliat  if  doccasod 
knew  that  the  regulations  of  tin-  ri)iii]i:iiiy  ])i'nliil)itt'il  ixTsmis  Irdiu 
travi-lliiig  ciw  till-  road  witlirjut  a  ticket  or  tlif  jiayiiig  of  fare,  and  it', 
aft'T  1icin^^  so  iiitoriiicil,  lie  wi-nt  oii  tlii^  train,  and  by  arraii'j:enH'iit 
I  "'.itli  tlif  coiidur-tor,  was  travelling  without  a  ticket  or  T)ayinL"  liis 
inf.  (IfCfasi-d,  in  such  case,  would  imt  be  a  ]iasseiigrr,  and  the 
coiiqiaiiy  would  not  ix-  liable  for  the  iie'_;liL;eiice  ol'  their  nllicTS. 
In  sonic  form,  all  those  refused  instructions  jtresent  this  (luostion. 

Defendant  in  error  insists  that  this  case  is  governed  by  tliat  of 

The  Ohio  and  Mississippi  Railroad  Co.  v.  !Mnhling,  30  111.  9.     In 

tiiat  case  tlie  passenger  had  been  in  the  em])loymont  of  the  road, 

and  was  neither  jirohibited  from  getting  on  the  train,  nor  informed 

tiiat  it  was  against  tlie  rules  for  liim  to  do  so  withoiit  a  ticket  or  the 

oi-.iuentof  fare.     Again,  the  company,  in  that  case,  sooms  to  have 

1   tlje  plaintiff  for  labor,  which  would  have  enabled  them  to 

'  t  tlie  amount  of  faro  from  the  amount  owing  liini.     It  was 

'^•lifl,  tliat  if  a  person  was  lawfully  on  the  train,  antl  injuries 

•om  tlie  negligence  of  the  employees  of  the  coni])aiiy,  the 

\  _  1  thus  injured  might  recover. 


WHO   DEEMED    PASSENGERS.  555 

On  the  part  of  plaintiff  in  error  it  is  urged  that  railroad  com- 
panies, being  liable  for  the  want  of  care  of  their  officers  by  which 
passengers  suffer  injury,  must  have  the  power  to  make  all  reason- 
able regulations  for  the  government  of  their  employees,  and  the 
power  to  enforce  them;  that  is  a  reasonable  regulation  which  pro- 
hibits persons  from  travelling  upon  their  roads  without  purchasing 
a  ticket  or  paying  fare ;  that  a  person  going  on  their  road  in  known 
violation  of  such  a  rule,  and  by  inducing  the  conductor  to  violate  it, 
is  not  lawfully  on  the  road,  and  the  company  should  not  be  held 
responsible  for  an  injury  received  by  such  person;  that  where  a  per- 
son actively  participates  in  the  violation  of  such  a  rule  intentionally 
and  knowingly,  he  does  not  occupy  the  same  relation  to  the  road 
as  had  he  not  known  of  the  rule  or  not  done  any  act  to  induce  its 
violation. 

It  is  manifest  that  if  a  person  were  stealthily,  and  wholly  with- 
out the  TcTinwlprlgft  of  pny  of  the  employees  of  the  company,  to  get 
upon  a  train  and  secrete  himself,  for  the  purpose  of  passing  from 
one  place  to  another,  he  could  npt  recover  if  injured.  In  such  a 
case  his  wrongful  act  would  bar  him  from  all  right  to  com]oensation. 
Then,  does  the  act  of  the  person  who  knowingly  induces  the  con.- 
ductor  to  violate  a  rule  of  the  company,  and  prevails  upon  him  to 
disregard  his  obligations  to  fidelity  to  his  employer,  to  accomplish 
the  same  purpose,  occupy  a  different  position,  or  is  he  entitled  to  any 
more  rights?  He  thereby  combines  with  the  conductor  to  wrong 
and  defraud  his  employer  out  of  the  amount  of  his  fare,  and  for  his 
own  profit^  In  this  case  the  evidence  tends  strongly  to  show  that 
both  defendant  in  error  and  her  husband  had  money  more  than 
sufficient  to  pay  their  fare  to  Danville,  and  a  considerable  distance 
_beyond  that  place.  If  this  be  true,  and  defendant  in  error  swears"~^ 
they  had,  then  they  were  engaged  in  a  deliberate  fraud  on  the  com- 
pany, no  less  than  bv  false  representations  to  obtain  their  passage 
free  from  Decatur  to  Danville,  and  thus  defraud  the  company  out  of 
the  sum  required  to  pay  thp.iy  fn.rp^  In  this  there  is  a  broad  distinc- 
tion  from  Muhling's  case,  as  in  that  case  there  was  no  pretence  of 
fraud  or  wrong  on  his  part.  The  court  below  should  have  given 
some  one  of  the  defendant's  instructions  which  announced  the  view 
here  expressed. 

The  evidence  is  not  of  the  character  to  convince  us  that  the  judg- 
ment should  stand,  notwithstanding  the  erroneous  instructions  given 
or  the  refusal  to  give  proper  instructions.  We  have  no  doubt  that 
the  erroneous  instructions  given  misled  the  jury  in  finding  their 
verdict.  _ 

For  the  errors  indicated,  the  judgment  of  the  court  below  must  be 
reversed  and  the  cause  remanded. 


656  CARRIERS   OF   PASSENGERS. 


WAY    r.    CHICAGO,    etc.,   K.    CO. 
04  Iowa,  48.     1834. 

The  plaintiff  is  the  administrator  of  the  estate  of  John  Way, 
deceased.  The  action  was  brought  by  the  decedent.  After  his 
death  the  present  plaintiff  was  substituted.  The  plaintiff  claims  to 
recover  for  a  personal  injury  alleged  to  have  been  received  by  the 
decedent  as  a  passenger  on  one  of  defendant's  trains,  and  by  being 
thrown  against  a  cupola  platform,  by  defendant's  negligence  in 
making  a  coupling.  There  was  a  trial  to  a  jury,  and  verdict  and 
judgment  were  rendered  for  the  plaintiff.     The  defendant  appeals. 

Adams,  J.  In  April,  18.S1,  the  decedent  took  passage  upon  a 
freiirht  train  at  Monroe.  Jasper  County,  for  Oskaloosa.  In  ])avnient 
of  lii.s  fcirf.  lie  presented  a  mileage  ticket,  which  liad  been  issued  to 
one  K.  G.  Fori^rave,  at  commutation  rates.  The  conductor  of  the' 
train,  without  knowledi^e  that  Way  was  not  F(iru:rave,  detached  the 
coupons  for  his  ])assage. l^rintedjupon  the  ticket  were  several  con- 
ditions, and  also  a  printed  acceptance  of  the  conditions,  whicli  was 
si.i,Micd  l)y  Forgrave.    and  the   A\-Tujle  was   denominated  a   contract. 

these  words :  "  This  tic ket  is  ])ositivcly 
if  presented  by  any  otlicr  than  the  person 
whose  nuiiif  ap])cars^on  tlie  inside  of  the  cover,  and  whose  signature 
is  atta(-hed  below,  it  is  forfeited  to  the  com])aiiy." 

The  defendant's  theory  upon  the  trial  below  was,  that  the  dece- 
dent was  not  a  passenger  within  the  meaning  of  the  law,  and  asked 
the  court  to  instruct  accordingly.  This  the  court  refused  to  do,  and 
gave  an  in.struction  in  tliese  words:  "If  you  find  from  the  evidence 
that  the  decedent  was  injured  to  the  damage  of  liis  estate  substan- 
tially as  alleged,  and  that  he  was  at  that  time  riding  in  a  caboose  in 
the  defendant's  train,  on  the  mileage  ticket  in  evidence,  issued  by 
the  defendant  to  U.  G.  Forgrave,  and  that,  upon  its  presentation  in 
payment  for  transportation,  the  conductor  of  the  train  accepted  tlie 
ticki't,  and  recognized  and  treated  the  decedent  as  a  ])assenger,  the 
defendant's  duties  and  obligations  were,  and  its  liabilities  now  are, 
the  same  as  if  the  ticket  had  been  issued  to  the  decedent,  whether 
prior  to  the  accident  he  disclosed  to,  or  the  conductor  knew,  his 
identity  or  not." 

In  respect  to  the  measure  of  care  wliich  common  carriers  owe  to 
pn  sf'ngers,  the  court  gave  an  instruction  as  follows:  "Common 
carriers  of  persons  are  required  to  do  all  that  human  care,  vigilance, 
aiul  forfsit'ht  can  rea.sonably  do,  in  view  of  tlie  charafter  and  mode 
"  adoptcil,  to  prevent  aeeidcnt  to  passengers.     Not  the 

''  of  care  which  the  human  miiul  is  eapable  of  invent- 


WHO   DEEMED   PASSENGERS.  557 

ing,  but  the  highest  degree  of  care  and  diligence  which  is  reasonably 
practicable  under  the  circumstances,  is  what  is  required." 

The  giving  of  these  instructions  is  assigned  as  error.  The  defend- 
ant insists  that  the  contract  relied  upon,  as  constituting  the  relation 
of  common  carrier  and  passenger,  was  obtained  by  imposition  and 
virtual  misrepresentation,  and,  it  being  now  repudiated  by  the  com- 
pany by  a  denial  by  it  of  its  liability,  the  plaintiff  cannot  be  allowed 
to  set  it  up  as  binding  upon  the  company;  and  that,  if  the  relation 
of  common  carrier  and  passenger  did  not  exist,  the  company  did  not 
owe  the  decedent  the  measure  of  care  set  forth  in  the  instruction. 

It  a])])ears  to  us  that  the  defendant's  position  in  this  respect  'is 
well  taken.  "When  the  decedent  presented  the  ticket^  we  must  pre- 
sume that  he  intended  to  be  understood  as  claiming  that  he  had  a 
right  to  travel  upon  it.  This  claim  involved  the  claim  that  he  was 
Forgrave,  for  the  ticket  showed  upon  its  face  that  no  one  had  a 
right  to  travel  mion  it  but  Forgrave.  Bv  the  presentation  of  the 
ticket,  the  decedent  falsely  personated  Forgrave,  with  the  intention 
of  deceiving  the  company;  and  he  did  deceive  it,  and  to  its  injury, 
for,  by  reason  of  the  deception,  he  escaped  the  payment  of  the  full 
rate  with  which  he  was  otherwise  chargeable. 

It  is  not  material,  then,  that  the  decedent  obtained  the  conduc- 
tor's consent.  Whether  his  consent  would  have  bound  the  company, 
if  he  had  known  that  the  decedent  was  not  Forgrave,  we  need  not 
incjiiire;  it  certainly  did  not  under  the  circumstances  shown.  The 
only  relation  existing  between  the  decedent  and  the  company  having 
been  induced  bv  fraud,  he  cannot  be  allowed  to  set  up  that  relation 
against  the  company  as  a  basis  of  recovery.  He  was,  then,  at  the 
time  of  the  injury,  in  the  car,  without  the  rights  of  a  passenger, 
and~without  the  right  to  be  there  at  all.  We  do  not  say  that  it  is 
necessary  that  a  person  should  pay  fare  to  be  entitled  to  the  rights 
of  a  passenger.  It  is  sufficient,  probably,  if  he  has  the  consent  of 
the  company  fairly  obtained.  But  no  one  would  claim  that  a  mere 
trespasser  has  such  rights;  and  it  appears  tons  to  be  well  settled 
that  consent  obtained  by  fraud  is  equally  unavailing. 

The  plaintiff  insists  that  the  extraordinary  care  described  in  the 
instruction  does  not  become  due  from  common  carriers  by  reason  of 
any  contract,  but  simply  by  a  rule  of  law  which  enforces  the  duty 
upon  broader  grounds.  It  is  not  important  to  inquire  precisely  how 
the  duty  arises.  However  it  arises,  the  duty  is  one  which  the  com- 
mon carrier  owes  only  to  passengers,  and  if,  as  we  hold,  the  decedent 
did  not  sustain  that  relation  within  the  meaning  of  the  law,  the 
company  did  not  owe  that  duty  to  him,  and  that  is  the  end  of  the 
inquiry.  The  doctrine  which  we  announce  was  very  clearly  ex- 
pressed in  T.,  W.  &  W.  R.  Co.  v.  Beggs,  85  111.  80.  In  that  case 
the  court  said :  "  Was  defendant  a  passenger  on  that  train  in  the 
true  sense  of  that  term?  He  was  travelling  on  a  free  pass  issued  to 
one  James  Short,  and  not  transferable,  and  passed  himself  as  the 


558  CARRIERS   OF   PASSENGERS. 

person  named  in  the  pass.  By  his  fraud  he  was  riding  on  the  car. 
Under  such  circumstances,  the  company  could  only  be  held  liable 
for  gross  negligence,  which  would  amount  to  wilful  injury."  In 
Thompson  on  Carriers  of  Passengers,  43,  section  3,  the  author  goes 
even  further.  After,  stating  the  rule  that  the  relation  of  carrier  and 
passenger  does  not  exist  where  one  fraudulently  obtains  a  free  ride, 
he  says :  "  This  doctrine  extends  further,  and  includes  the  case  of 
one  who  knowingly  induces  the  conductor  of  a  train  to  violate  the 
regulations  of  the  company,  and  disregard  his  obligations  of  fidelity 
to  his  employer."  In  U.  P.  R'y  Co.  v.  ^Nichols,  8  Kan.  505,  the 
defendant  in  error  imposed  himself  upon  the  company  as  an  express 
messenger,  and  obtained  the  consent  of  the  conductor  to  carry  him 
without  fare.  It  was  held  that  he  did  not  become  entitled  to  the 
rights  of  a  passenger.  The  court,  after  quoting  Sherman  &  Red- 
field's  definition  of  a  passenger,  which  is  in  these  words:  "A  pas- 
senger is  one  who  undertakes,  with  the  consent  of  the  carrier,  to 
travel  in  the  conveyance  provided  by  the  latter,  other  than  in  the 
service  of  the  carrier  as  such,"  proceeds  to  say :  "  The  consent  obtained 
from  the  conductor  was  the  consent  that  an  express  messenger  might 
ride  witliout  paying  his  fare.  Such  consent  did  not  apply  to  the 
plaintiff  (the  defendant  in  error)."  See  also  the  following  cases; 
T.,  W.  &  W.  R.  Co.  V.  Brooks,  81  111.  292  [554];  M.  &  C.  R.  Co. 
V.  Cliastine,  54  Miss.  503;  Creed  v.  Penn.  R.  Co.,  86  Penn.  St.  139; 
Relf  V.  Rupp,  3  W.  &  S.  21;  Hayes  v.  Wells,  Fargo  &  Co.,  23 
Cal.  185. 

The  plaintiff  cites  and  relies  upon  Bissell  v.  R.  Co. 's,  22  X.  Y. 
308;  Washburn  v.  Nashville,  &c.,  R.  Co.,  3  Head,  638;  Jacobus  v. 
St.  Paul,  &c.,  R.  Co.,  20  Minn.  125  [657];  Penn.  R.  Co.  v. 
Brooks,  57  Pa.  St.  346;  Wilton  v.  Middlesex,  R.  Co.,  107  iMass. 
108  [544];  Flint,  &c.,  R.  Co.  v.  Weir,  37  Mich.  Ill  [17];  Dunn 
V.  Grand  Trunk  R'y  Co.,  58  Me.  192;  Edgerton  v.  X.  Y.,  &c.,  R. 
Co.,  39  N.  Y.  227;  Gregory  v.  Burlington,  &c.,  R.  Co.  10  Neb.  250; 
Great  Northern  R'y  Co.  v.  Harrison,  10  Excli.  376.  But  none  of 
these  ca.ses  liold  that  the  extraordinary  care  described  in  the  instruc- 
tion given  is  due  to  a  person  not  a  passenger,  and  none  of  them  jiold 
that  the  relation  of  passenger  can  be  insisted  upon,  where  the  com- 
pany shows  attirnuitively,  as  a  defence,  that  the  company's  consent 
was  obtained  by  fraud. 

Certain  special  objections  to  tlie  defence  remain  to  be  noticed. 
Sec.  2086  of  the  Code  provides  that  "when  by  the  terms  of  an  instru- 
ment its  assignment  is  jiroliibited,  an  assignment  of  it  shall  never- 
theless be  valid."  The  ])laintitT  cites  tliis  statute,  and  claims,  as  we 
undf-rstaiid,  that  the  mere  possession  of  the  ticket  by  the  decedent 
w.'is  j,rima  facie  evidence  of  an  assignment  to  him,  and  that  the 
as.sigriment  under  the  statute  was  valid,  and,  being  such,  it  is  im- 
matorial  wliether  the  conductor  supposed  that  the  decedeni  was 
Forgrave  or  not. 


WHO   DEEMED   PASSENGERS.  559 

Without  undertaking  to  set  foyth  J^ll  t.he  answers  whioh  wps  thjiil^ 
miglit  be  made  to  this  position,  we  think  it  sufficient  to  say  that  we 
do  not  think  that  the  word  "instrument,"  as  used  in  the  statute,  was 
designed  to  embrace  railroad  tickets  like  the  one  in  question.  The 
purpose  of  such  a  ticket  is  to  serve  as  evidence  of  a  contract  to  ren- 
der the  party  to  whom  it  is  issued  a  personal  service,  to  wit,  the 
transportation  of  himself  and  baggage,  and  no  one  else,  over  the 
route  described.  The  language  is :  "  On  presentation  of  this  ticket, 
with  coupons  and  contract  attached,  Mr.  R.  G.  Forgrave  may  travel, " 
&c.  While  section  2085  treats  of  instruments  whereby  the  maker 
acknowledges  labor  to  be  due  another,  and  while  a  valid  assignment 
may  undoubtedly  be  made  of  such  instruments  under  the  statute,  we 
cannot  properly  so  construe  the  statute  as  to  hold  that  the  essential 
nature  of  the  contract  can  be  changed,  so  as  to  require  the  maker  to 
do  not  only  what  he  did  not  agree  to  do,  but  what  the  other  party 
expressly  stipulated  that  the  maker  should  not  be  required  to  do. 
The  case  is  not  different  from  one  where  an  individual  or  corpora- 
tion should  agree  to  transport  certain  specific  freight,  and  no  other. 
No  assignment  could  be  made  of  the  contract  which  would  impose 
upon  the  maker  the  obligation  to  transport  different  freiglit.  It  is 
said  by  the  company  that  Forgrave  was  a  commercial  traveller,  and 
that  the  company  was  interested  in  facilitating  commercial  travellers, 
and  in  developing  commerce  along  its  line;  but  it  is  not  important 
to  inquire  how  this  is.  It  is  certain  that  we  cannot  go  beyond  the 
company's  contract,  so  far  as  its  essential  nature  is  concerned. 

Another  statute  relied  upon  is  section  11,  chapter  77,  Laws  of 
1878.  The  section  is  in  these  words :  "  No  railroad  corporation  shall 
charge,  demand,  or  receive  from  any  person  ...  for  the  transpor- 
tation of  persons  .  .  .  ,  or  for  any  other  service,  a  greater  sum 
than  it  shall,  at  the  same  time,  charge,  demand,  or  receive  from  any 
other  person  .  .  .  for  a  like  service  from  the  same  place,  or  upon' 
like  conditions  and  under  similar  circumstances."  The  plaintiff's 
position,  as  we  understand  it,  is  that  the  act  of  the  company  in 
commuting  rates  to  Forgrave,  though  he  might  have  belonged  to  a 
certain  class,  and  though  the  company  might  have  been  interested  \ 
in  facilitating  such  class,  was  nevertheless  a  violation  of  law,  and, 
being  such,  the  acts  of  the  decedent  in  gaining  the  advantage  of  the 
rates  commuted  to  Forgrave,  though  done  by  imposition,  were  jus- 
tifiable, and  did  not  preclude  him  from  insisting  that  he  had  the 
same  rights  that  he  would  have  had  if  he  had  paid  full  rates,  or  J 
otherwise  had  obtained  the  consent  of  the  company  without  fraud. 

It  is  a  sufficient  answer  to  say  that  if  the  company  charged  illegal 
rates  it  was  not  done  in  charging  Forgrave  less,  but  some  one  else 
more;  nor  could  the  decedent  properly  obtain  the  rates  made  to 
Forgrave  by  personating  Forgrave.  Whether,  if  he  had  appeared 
in  his  own  name,  and  demanded  that  the  rates  made  to  Forgrave 
should  be  made  to  him,   and  the  company  had  refused,    he  would 


560  CARRIERS   OF   PASSENGERS. 

have  had  a  right  to  complain,  we  need  not  determine,  as  we  have  no 
such  case. 
I       Another  position  taken  by  the  plaintiff  is  that  the  ticket  provides 
I  its  own  penalty  for  its  violation,  to  wit,   a  forfeiture,  and  that  no 
pother  penalty  can  be  added. 

But  the  question  before  us  is  not  as  to  the  enforcement  of  _ajH?naUy 
by  tlie  comiuuiy.  Init  us  to  whether  the  decedent  acquired  tlie  ri.i:;hts 
of  a  passen;.;er.  The  ri.u^lit  of  the  company  to  insist  tliat  lie  did  nut. 
if  he  never  iiroperly  acquired  tlie  consent  of  the  comnauv  to  carrv 
hiiu  us  suoli,  is  indepenik-nt  of  any  question  of  penalty^.  We  think 
thut  the  instruction  given  by  the  court  is  erroneous,  and  that  the 
judgment  must  be  Reversed. 


4.    LIABILITY   FOR   INJURIES. 

a.    From  ncgHgeiice. 

CHRISTIE   V.   GRIGGS. 
Before  Mansfield,  C.  J.    2  Camp.  79.     1809. 

This  was  an  action  of  assumpsit  against  the  defendant  as  owner  of 
the  I>lackwall  stage,  on  wliich  the  ])laiiitilY,  a  \)\\o\.^  was  travelliu!^ 
to  London,  when  it  broke  down^  and  lie  was  t^reatly  bruiseil.  The 
first  count  imputed  the  accident  to  the  negligeuce  of  the  driver;  the 
second,  to  the  insufficiency  of  the  carriage. 

The  plaintiff  havini^^  proved  that  the  axle-tree  snapped  asunder  at 
a  ]dace  where  tliere  is  a  sli;dii.deiiC£iit^-iru.m  the  Jicuuei  cros.shig^  tho_ 
road;  that  he  was,  in  consi'queiiee,  preciiiitated  from  the  top  of  the 
Poafh;   -njm]^  \\\:y\  M|r-  bniisrs   Ih;  ree.eiyed  coiitiiicd  him  sevc-ral  weeks 
to  his  JK-il.  — there  reste(|  hys  cnse. 

lirst.  Sergeant,  contended  strenuously  that  the  plaintiff  was  bound 
to  proceed  farther,  and  give  evidence,  either  of  the  driver  being 
unskilful,  or  of  the  coach  being  insufKcient. 

Sir  Jame.s  Mansfield,  C.  J.  I  think  tlie  plaintiff  has  made  a 
[irivi'i  J'nr'ie  case  by  proving  his  goint:  on  thi-  coach,  the  aecideiit,  ;iiid 
til'.'  damage  he  has  suflrn  d.  It,  now  lies  on  the  other  side  to  show 
that  the  fr>aeh  was  as  gdod  :t  coaeli  as  cfiuhl  be  niaile.  and  that,  the 
driver  was  as  skilful  a  driver  as  coiild  Mnyulieii-  Ijlj  found.  What 
oth'er  evidence;  can  the  plaintiff  give?  The  passengers  were  })robably 
all  sailors  like  himself;  and  Ikjw  do  they  know  whether  the  coach  was 
well  built,  or  whether  the  coachman  drove  skilfully?  In  many  other 
■"  -ort  it  must  be  equally  impossible  for  the  ])laintiff  to 
•lice  required.     But  when  the  breaking  down  or  over- 


LIABILITY   FOR   INJURIES.  561 

turning  of  the  coach  is  proved,  negligence  on  the  part  of  the  owner 
is  implied.  He  has  always  the  means  to  rebut  this  presumption, 
if  it  be  unfounded;  and  it  is  now  incumbent  on  the  defendant  to 
make  out,  that  the  damage  in  this  case  arose  from  what  the  law  con- 
siders a  mere  accident. 

The  defendant  then  called  several  witnesses,  who  swore  that  the 
axle-tree  had  been  examined  a  few  days  before  it  broke  without  any 
flaw  being  discovered  in  it;  and  that  when  the  accident  happened, 
the  coachman,  a  very  skilful  driver,  was  driving  in  the  usual  track 
and  at  a  moderate  pace. 

Sir  James  Mansfield  said,  as  the  driver  had  been  cleared  of 
everything  like  negligence,  the  question  for  the  iury  would  be,  — as 
to  the  sufficiency  of  the  (ioach.  If  the  axle-tree  was  sound  as  far  as 
human  eve  could  discover,  the  defendant  was  not  liable.  There  was 
a  difference  between  a  contract  to  carry  goods,  and  a  contract  to  carry 
passengers.  For  the  goods  the  carrier  was  answerable  at  all  events. 
But  he  did  not  warrant  the  safety  of  the  passengers!  His  undeF" 
taking  as  to  them  went  no  farther  than  this,  that  as  far  as  human 
care  and  foresight  could  go,  he  would  provide  for  their  safe  con- 
veyance. Therefore  if  the  breaking  down  of  the  coach  was  purely 
accidental,  the  plaintiff  had  no  remedy  for  the  misfortune  he  had 
encountered. 

The  jury  found  a  verdict  for  the  defendant. 


INGALLS   V.    BILLS. 
9  Met.  (Mass.)  1.     1845. 

Assumpsit  on  an  implied  promise  of  the  defendants  as  coach  pro- 
prietors and  common  carriers  of  passengers,  to  convey  the  plaintiff 
safely  from  Boston  to  Cambridge. 

At  the  trial  in  the  Court  of  Common  Pleas,  before  Williams, 
C.  J.,  the  plaintiff  introduced  evidence  tending  to  prove  that,  on 
the  23d  of  Septembpr,  184-1,  hp,  and  several  other  persons  took  out- 
side seats,  as  passengers,  on  the  top  of  the  defendants'  coach,  to  be 
conveyed  from  Boston  to  Cambridge;  that  on  the  way,  in  Court 
Street,  in  Boston,  while  proceeding  at  a  moderate  rate,  and  without 
coming  in  contact  with  anything^  or  meeting  any  obstruction,  the 
hind  axle-tree  of  the  coach  broke,  one  of  the  hind  wheels  came  off^ 
and  the  coach  settled  down  on  one  side,  without  being  overset;  that 
the  plaintiff  and  some  other  outside  passengers,  being  alarmed, 
jumped  from  the  top  "^  ^■^"'P  nncnh  npnn  fViP  pavement;  and  that  the 
plaintiff's  left  arm  was  thereby  badly  injured. 

The  defendants  introduced  evidence  tending  to  prove  that  they 
had  taken  all  possible  care,  and  incurred  extraordinary  expense  in 

36 


562  CARRIERS   OF   PASSENGERS. 

order  that  the  said  coach  should  be  of  the  best  materials  aud  work- 
mauship;  that  at  the  time  of  the  accident  the  coach,  so  far  as  could 
be  discovered  from  the  most  careful  inspection  and  examination 
externally,  was  strong,  sound,  and  sufficient  for  the  journey;  and 
that  they  liad  uniformly  exercised  the  utmost  vigilance  and  care  to 
preserve  and  keep  the  same  in  a  safe  and  roadworthy  condition. 
l!ut  the  evidence  fjirther  tended  to  prove  that  there  was  an  internal 
defect  or  Haw  in  the  iron  of  the  axle-tree,  at  the  idace  where  it  was 
bn>ki-n  as  aforesaid,  about  three-eighths  of  an  inch  in  length,  and 
'.■:':[,■  enough  to  insert  the  point  of  a  fine  needle  or  pin  —  wliicli 
U'i<ct  or  flaw  appeared  to  have  arisen  from  the  forging  of  the  iron, 
and  which  might  have  been  the  cause  of  the  said  breaking:  that  the 
said  defect  was  entirely  surrounded  by  sound  iron  one-quarter  of  an 
iueli  thick;  and  that  the  Haw  or  defect  could  not  ])ossiblv  have  been 
iliseovereil  bv  ins]iection  and  exauunation  externally. 

Upon  this  evidence  the  defendants  moved  the  court  to  instruct  the 
jury  that  it  was  the  duty  of  the  defendants  to  use  all  possible  care 
in  providing  a  good  coach,  in  keeping  the  same  in  due  repair,  and 
in  flue  examination  into  its  condition;  and  if  they  took  such  care, 
and  tlie  accident  happened,  without  an}'  fault  or  negligence  on 
their  part,  but  by  reason  of  a  defect  which  they  could  not  discover, 
then  the  verdict  should  be  for  them ;  and  that  the  plaintiff  was  not 
entitled  to  a  verdict,  unless  the  jury  were  of  opinion  that  there 
was  some  degree  of  actual  fault  or  negligence  on  the  part  of  the 
defendants. 

The  judge  declined  giving  these  instructions,  but  submitted  the 
evidence  to  the  jury,  witli  instructions  that  the  defendants  were 
bound  by  law,  and  by  an  implied  promise  on  their  part,  to  provide 
a  coach  not  only  apparently,  but  really  roadworthy;  that  they  were 
liable  for  any  injury  tliat  might  arise  to  a  passenger  from  a  defect 
in  the  original  construction  of  the  coach,  although  the  imperfection 
was  not  visible  and  could  not  be  discovered  upon  inspection  aud 
examination;  and  that  if  tlie  jury  were  satisHed,  from  tlie  evidence, 
tliat  the  axle-tree  l>roke  in  consequence  of  tlie  original  Haw  or  defect 
in  the  interior  thereof,  and  the  plaintiff  was  injured  thereby,  he  was 
entitled  to  a  verdict,  although  that  flaw  was  invisible,  and  could  not 
be  discovered  by  inspection  and  examination  externally. 

The  jury  returned  a  verdict  for  the  idaintiff,  and  the  defendant 
alleged  exceptions. 

Ht'itiiAKo,  J.  The  question  presented  in  this  case  is  one  of  mucli 
importance  to  a  community  like  ours,  so  many  of  wliose  citizens  are 
enguged  in  business  which  requires  their  transportation  from  ])lace 
tf}  plaee  in  vehicles  furnished  by  others;  and  tliougli  sjjced  seems  to 
l>G  the  mo.st  desirable  clement  in  modern  travel,  yet  the  law  points 
more  Hpecifically  to  the  security  of  the  traveller. 

Cndor  the  charge  of  the  learned  judge  who  tried  tliis  ease,  we  arc 
called  upon  to  decide  whether  the   i)roprietors  of  stage-coaclies  are 


LIABILITY   FOR   INJUKIES.  563 

answerable  for  all  injuries  to  passengers  arising  from  accidents  hap- 
pening  to  their  coaches,  although  proceeding  from  causes  which  the 
greatest  care  in  the  examination  and  inspection  ot  the  coach  could  -n 
not  guard  against  or  ])revent^  or,  in  other  words,  whetlier  a  coach  ^<-c^ 
must  be  alike  free  from  secret  defects,  which  the  owner  cannot 
detect,  after  the  most  critical  examination^  as  irom  tnose  wnicla 
might,  on  such  an  examinntimi,  bp  disnnvprp d . 

The  learned  judge  ruled  that  the  defendants,  as  proprietors  of  a 
coach,  were  bound  by  law,  and  by  an  implied  promise  on  their  part, 
to  provide  a  coach,  not  only  apparently,  but  really,  roadworthy,  and 
that  they  were  liable  for  any  injury  that  might  arise  to  a  passenger 
from  a  defect  in  the  original  construction  of  the  coach,  although 
the  imperfection  was  not  visible,  and  could  not  be  discovered  upon 
inspection  and  examination. 

The  law  respecting  common  carriers  has  ever  been  rigidly  enforce d , 
and  probably  there  has  been  as  little  relaxation  of  the  doctrine^  as 
maintained  by  the  ancient  autiiorities,  respecting  this  species  of 
contract,  as  in  any  one  branch  of  the  common  law.  This  arises  from 
the  great  confidence  necessarily  reposed  in  persons  engaged  in  this 
employment.  Goods  are  intrusted  to  their  sole  charge  and  over- 
sight,  and  for  which  they  rpnpivp  a  suitable  compensation;  and  they 
have  been,  and  still  are,  held  responsible  for  the  safe  delivery  of 
the  goods,  with  but  two  exceptions,  viz.,  the  act  of  God  and  the 
king's  enemies;  so  that  the  owners  of  goods  may  be  protected 
against  collusive  robberies,  against  thefts  and  embezzlements,  and 
negligent  transportation.  But  in  regard  to  the  carriage  of  passen- 
gers, the  same  principles  of  law  have  not  been  applied;  and  for  the 
obvious  reason  that  a  great  distinctioii  exists  between  persons  and~ 
goods,  the  passengers  being  capable  of  taking  care  of  themselves, 
and  of  exercising  that  vigilance  and  foresight  in  the  maintenance 
of  their  rights,  which  the  owners  of  goods  cannot  do,  who  have 
intrusted  them  to  others. 

It  is  contended  by  the  counsel  for  the  plaintiff,  that  the  propri- 
etor of  a  stage-coach  is  held  responsible  for  the  safe  carriage  of  pas- 
sengers so  far  that  he  is  a  warrantor  that  his  coach  is  roadworthy, 
that  is,  is  absolutely  sufficient  for  the  performance  of  the  journey 
undertaken;  and  that  if  an  accident  happens,  the  proof  of  the 
greatest  care,  caution,  and  diligence,  in  the  selecting  of  the  coach, 
and  in  the  preservation  of  it  during  its  use,  will  not  be  a  defence  to 
the  owner;  and  it  is  insisted  that  this  position  is  supported  by 
various  authorities.  The  cases,  among  many  others,  cited,  which 
are  more  especially  relied  upon,  are  those  of  Israel  v.  Clark,  4  Esp. 
R.  259;  Crofts  v.  Waterhouse,  3  Bing.  319;  Bremner  v.  Williams, 
1  Car.  &  P.  414;  and  Sharp  v.  Grey,  9  Bing.  457.  If  these  cases 
do  uphold  the  doctrine  for  which  they  are  cited,  they  are  certainly 
so  much  in  conflict  with  other  decided  cases,  that  they  cannot  be 
viewed  in  the  light  of  established  authorities.     But  we  think,  upon 


564  CARKIEKS   OF   PASSENGERS. 

an  examination  of  them  and  comparing  them  with  other  cases,  th'\v 
will  not  be  found  so  clearly  to  sustain  the  position  of  the  plaiutiti 
as  has  been  argued. 

It  must  be  borne  in  mind  that  the  carrying  of  passengers  for  hire, 
in  coaches,  is  eomjxiratively  a  modern  practice;  and  tliat  though 
suits  occur  against  owners  of  coaches,  for  the  loss  of  goods,  as  early 
as  the  time  of  Lord  Holt,  yet  the  first  case  of  a  suit  to  recover 
damages  by  a  passenger,  which  I  have  noticed,  is  that  of  White  v. 
lloulton,  Peake's  Cas.  81,  which  was  tried  before  Lord  Kenyon  in 
17*Jl,  and  published  in  1795.  That  was  an  action  against  the  pro- 
prietors of  the  Chester  mail-coach  for  the  negligence  of  the  driver, 
by  reason  of  which  the  coach  was  overturned,  and  the  plaintiff's 
arm  broken,  and  in  which  he  recovered  damages  for  the  injury;  and 
Lord  Kenyon,  in  delivering  his  opinion,  said, ''when  tliese  (mail) 
coaches  carried  j)asse7ir/crs,  the  proprietors  of  them  were  bound  to 
carry  them  safely  and  properly."  The  correctness  of  the  opinion 
cannot  be  doubted,  in  its  application  to  a  case  of  negligence.  The 
meaning  of  the  word  ''safely,"  as  used  in  declarations  for  this 
species  of  injury,  is  given  hereafter. 

The  next  case  which  occurred  was  that  of  Aston  v.  Heaven,  2  Esp. 
R.  533,  in  1797,  which  was  against  the  defendants,  as  proprietors 
of  the  Salisbury  stage-coach,  for  negligence  in  the  driving  of  their 
coach,  in  consequence  of  which  it  was  overset  and  the  plaintiff  in- 
jured. This  action  was  tried  before  Eyre,  C.  J.  It  was  contended 
by  the  counsel  for  the  plaintiff,  that  coach  owners  were  liable  in  all 
cases,  except  where  the  injury  happens  from  the  act  of  God  or  the 
king's  enemies;  but  the  learned  judge  held  that  cases  of  loss  of  goods 
by  carriers  were  totally  unlike  the  case  before  him.  In  tliose  cases, 
the  parties  are  protected  by  tlie  custom;  but  as  against  carriers  of 
persons,  the  action  stands  alone  on  the  ground  of  negligence. 

The  next  case  was  that  of  Israel  v.  Clark,  4  Esp.  R.  259,  in  1S03, 
where  the  plaintiff  sought  to  recover  damages  for  an  injury  arising 
from  the  overturning  of  the  defendant's  coacli,  in  conseqiu'uce  of  the 
axle-tree  having  broken;  and  one  count  alleged  the  injury  to  have 
arisen  from  the  overloading  of  the  coach.  It  was  contended  that  if 
the  owners  carried  more  passengers  than  they  were  allowed  by  Act 
of  Parliament,  that  should  be  deemed  such  an  (overloading.  To  this 
Lord  Ellcnborough,  who  tried  tlie  cause,  assented,  and  said,  "if 
tlicy  carried  more  tlian  the  statute  allowed  they  were  liable  to  its 
j>enalties;  but  they  might  not  be  entitled  to  carry  so  many;  it 
depended  on  the  strength  of  the  carriage.  They  were  bound  by  law 
to  j)rovide  suflicient  carriages  for  the  safe  conveyance  of  the  })ublic 
who  had  occasion  to  travel  by  them.  At  all  events,  he  would  expect 
a  clear  landworthiness  in  the  carriage  itself  to  be  estal)lislied." 
ThiH  is  one  of  the  coses  upon  which  the  j)resent  plaintiff  specially 
relies.  It  was  a  WMt  //riiis  case,  and  it  does  not  a)>])e.'ir  u])on  which 
Count  the  jury  found  their  verdict,     liut  tlie  point  pending  in  the 


LIABILITY   FOR   INJURIES.  565 

present  case  was  neither  discussed  nor  started,  viz.,  whether  the 
accident  arose  from  the  negligence  of  the  owner  in  not  providing  a 
coach  of  sufficient  strength,  or  from  a  secret  defect  not  discoverable 
upon  the  most  careful  examination.  No  opinion  was  expressed 
whether  the  action  rests  upon  negligence  or  upon  an  implied  war- 
ranty. But  it  was  stated  that  the  defendants  were  bound  by  law  to 
provide  sufficient  carriages  for  the  passage,  and,  at  all  events,  that 
there  should  be  a  clear  landworthiness  in  the  carriage  itself. 

The  general  position  is  not  denied  with  regard  to  the  duty  of  an 
owner  to  provide  safe  carriages.  The  duty,  however,  does  not  in 
itself  import  a  warranty.  The  judge  himself  may  have  used  stronger 
expressions  in  the  terms,  "landworthiness  in  the  carriage,"  than  he 
intended  by  the  thought  of  seaworthiness  in  a  ship,  and  the  duty  of 
shipowners  in  that  respect.  If  the  subject  had  been  discussed,  and 
the  distinctions  now  presented  had  been  raised,  and  then  the  opinion 
had  followed,  as  expressed  in  the  report,  it  would  be  entitled  to 
much  more  consideration  than  the  mere  strength  of  the  words  now 
impart  to  it. 

The  next  case  was  that  of  Christie  v.  Griggs,  2  Campb.  79  [560], 
in  1809.     There  the  axle-tree  of  the  coach  snapped  asunder  at  a 
place  where  there  was  a  slight  descent  from  the  kennel  crossing  the 
road,  and  the  plaintiff  was  thrown  from  the  top  of  the  coach.     Sir 
James  Mansfield,  in  instructing  the  jury,  said :  "  As  the  driver  had 
been  cleared  of  negligence,  the  question  for  the  jury  was  as  to  the 
sufficiency  of  the  coach.     If  the  axle-tree  was  sound,  as  far  as  human 
eye   could  discover,   the  defendant  was  not  liable.     There  was  a 
difference  between  a  contract  to  carry  goods  and  a  contract  to  carry 
passengers.     For  the  goods,  the  carrier  was  answerable  at  all  events, 
but  he  did  not  warrant  the  safety  of  the  passengers.     His  under- 
taking as  to  them  went  no  further  than  this,  that,  as  far  as  human  care 
and  foresight  could  go,  he  would  provide  for  their  safe  conveyance. 
Therefore,  if  the  breaking  down  of  the  coach  was  purely  accidental, 
the  plaintiff  had  no  remedy  for  the  misfortune  he  had  encountered." 
The  case  of  Bremner  v.  Williams,  1  Car.  &  P.  414,  in  1824,  is 
relied  on  by  the  plaintiff.     There,  Best,  C.  J.,  said  he  considered 
that  "  every  coach  proprietor  warrants  to  the  public  that  his  stage- 
coach is  equal  to  the  journey  it  undertakes,  and  that  it  is  his  duty 
to  examine  it  previous  to  the  commencement  of  every  journey." 
And  so,  in  Crofts  v.  Waterhouse,  3  Bing.  321,  in  1825,  Best,  C.  J., 
said:  "The  coachman  must  have  competent  skill,  and  use  that  skill 
with  diligence;  he  must  be  well  acquainted  with  the  road  he  under- 
takes to  drive;  he  must  be  provided  with  steady  horses,  a  coach  and 
harness  of  sufficient  strength,  and  properly  made;    and  also  with 
lights  by  night.     If  there  be  the  least  failure  in  any  one  of  these 
things,  the  duty  of  the  coach  proprietors  is  not  fulfilled,  and  they 
are  answerable  for  any  injury  or  damage  that  happens."    But  though 
this  language  is  strong,  and  would  apparently  import  a  warranty, 


566  CARRIEKS  OF  PASSENGERS. 

on  the  part  of  the  stage  proprietor,  as  to  the  sufficiency  of  his  coach, 
yet  Park,  J.,  in  the  same  case  said,  "a  carrier  of  passengers  is  only 
liable  for  negligence."  This  shows  that  the  court  did  not  mean  to 
lay  down  the  law,  that  a  stage  proprietor  is  in  fact  a  warrantor  of 
the  sufficiency  of  his  coach  and  its  equipments,  but  that  he  is  bound 
to  use  the  utmost  diligence  and  care  in  making  suitable  provision 
for  those  whom  he  carries;  and  we  think  such  a  construction  is 
warranted  by  the  language  of  the  same  learned  judge  (Best),  in  the 
case  of  Harris  v.  Costar,  1  Car.  &  P.  606,  iu  1825,  wliere  the  aver- 
ment in  the  declaration  was,  that  the  defendant  undertook  to  carry 
the  plaintiff  safely.  The  judge  held  that  it  did  not  mean  that  the 
coach  proprietor  undertook  to  convey  safely  absolutely,  but  that  it 
was  to  be  construed  like  all  other  instruments,  taking  the  Avhole 
together,  and  meant  that  the  defendants  were  to  use  due  care. 

But  the  case  mainly  relied  upon  by  the  plaintiff  is  that  of  Sharp 
f.  Grey,  9  Bing.  457,  where  the  axle-tree  of  a  coach  was  broken  and 
the  plaintiff  injured.  There  the  axle  was  an  iron  bar  enclosed  in  a 
frame  of  wood  of  four  pieces,  secured  by  clamps  of  iron.  The  coach 
was  examined,  and  no  defect  was  obvious  to  the  sight.  But  after 
the  accident  a  defect  was  found  in  a  portion  of  the  iron  bar,  whicli 
could  not  be  discovered  without  taking  off  the  woodwork;  and  it 
was  proved  that  it  was  not  usual  to  examine  tlie  iron  under  the  wood- 
work, as  it  would  rather  tend  to  insecurity  than  safety.  It  does  not 
appear  by  the  statement,  that  the  defect  could  not  have  been  seen, 
on  taking  off  the  woodwork ;  but  it  would  rather  seem  that  it  might 
have  been  discovered.  However  that  may  be,  the  language  of 
different  judges,  in  giving  their  opinion  is  relied  upon  as  maintain- 
ing the  doctrines  contended  for  by  the  plaintiff.  Gaselee,  J.,  held 
that  "tlie  burden  lay  on  the  defendant  to  show  there  had  been  no 
defect  in  the  construction  of  the  coach."  Bosanquet,  J.,  said:  "The 
chief  justice"  (who  tried  the  case)  "held  that  the  defendant  was 
bound  to  provide  a  safe  vehicle,  and  the  accident  happened  from  a 
defect  in  the  axle-tree.  If  so,  when  the  coach  started  it  was  not 
roadworthy,  and  the  defendant  is  liable  for  the  consequence,  upon 
the  same  principle  as  a  ship-owner  who  furnishes  a  vessel  which  is 
not  seaworthy."  And  Alderson,  J.,  said  he  was  of  the  same  oj^inion, 
and  that  "a  coach  i)ropriet(M-  is  lialde  for  all  defects  in  his  vt'liicli-, 
which  can  be  seen  at  the  time  of  construction,  as  well  as  for  such 
as  may  exist  afterwards,  and  be  discovered  on  investigation.  The 
injury  in  the  present  case  apjtears  to  have  been  occasioned  l)y  an 
ori'>^'inal  defect  of  construction;  and  if  the  defendant  were  not 
responsible,  a  coach  proprietor  miglit  Iniy  ill-constructed  or  unsafe 
vehicles,  and  his  passengers  be  without  remedy." 

This  case  goes  far  to  sui)])ort  the  plaintiff  in  the  doctrine  con- 
tended for  by  his  counsel,  as  it  would  seem  to  place  the  case  upon  tlie 
f-'-  '  'it  the  coach  proprietor  must,  at  all  events,  jtrovide  a  coach 
i^'  y  and  at  all  times  suflicient  for  tlie  jf)urney,  and  that  lie 


LIABILITY    FOR    INJURIES.  567 

is  a  warrantor  to  the  passenger  to  provide  such  a  coach.  But  we 
incline  to  believe  the  learned  judges  gave  too  much  weight  to  the 
comparison  of  Bosanquet,  J.,  viz.,  that  a  coach  must  be  roadworthy 
on  the  same  principle  that  a  ship  must  be  seaworthy.  We  think 
the  comparison  is  not  correct,  and  that  the  analogy  applies  only 
where  goods  are  carried,  and  not  where  passengers  are  transported. 
And  no  case  has  been  cited,  where  a  passenger  has  sued  a  ship- 
owner for  an  injury  arising  to  him  personally  in  not  conducting  him 
in  a  seaworthy  ship.  If  more  was  intended  by  the  learned  court, 
than  that  a  coach  proprietor  is  bound  to  use  the  greatest  care  and 
diligence  in  providing  suitable  and  sufficient  coaches,  and  keeping 
them  in  a  safe  and  suitable  condition  for  use,  we  cannot  agree 
with  them  in  opinion.  To  give  their  language  the  meaning  con- 
tended for  in  the  argument  of  the  case  at  bar  is,  in  fact,  to  place 
coach  proprietors  in  the  same  predicament  with  common  carriers, 
and  to  make  them  responsible,  in  all  events,  for  the  safe  conduct 
of  passengers,  so  far  as  the  vehicle  is  concerned.  But  that  the 
case  of  Sharp  v.  Grey  is  susceptible  of  being  placed  on  the  ground 
which  we  think  tenable,  namely,  that  negligence  and  not  war- 
ranty lies  at  the  foundation  of  actions  of  this  description,  maj'  be 
inferred  from  the  language  of  Mr.  Justice  Park,  who,  in  giving  his 
opinion,  says :  "  This  was  entirely  a  question  of  fact.  It  is  clear 
that  there  was  a  defect  in  the  axle-tree ;  and  it  was  for  the  jury  to 
say  whether  the  accident  was  occasioned  by  what,  in  law,  is  called 
negligence  in  the  defendant,  or  not."  And  Tindal,  C.  J.,  who  tried 
the  cause  before  the  jury,  left  it  for  them  to  consider  whether  there 
had  been  that  vigilance  which  was  required  by  the  defendant's 
engagement  to  carry  the  plaintiff  safely;  thus  apparently  putting 
the  case  on  the  ground  of  negligence  and  not  of  warranty.  See  also 
Bretherton  v.  Wood,  3  Brod.  &  Bing.  54,  and  6  Moore,  141;  Ansell 
V.  Waterhouse,  6  M.  &  S.  385,  and  2  Chit.  Pv.  1. 

The  same  question  has  arisen  in  this  country,  and  the  decisions 
exhibit  a  uniformity  of  opinion  that  coach  proprietors  are  not  liable 
as  common  carriers,  but  are  made  responsible  by  reason  of  negli- 
gence. In  the  case  of  Camden  and  Amboy  Railroad  Co.  v.  Burke, 
13  Wend.  626,  the  court  say  that  the  proprietors  of  public  convey- 
ances are  liable  at  all  events  for  the  baggage  of  passengers ;  but  as 
to  injuries  to  their  persons,  they  are  only  liable  for  the  want  of 
such  care  and  diligence  as  is  characteristic  of  cautious  persons. 
And  in  considering  the  subject  again  in  the  case  of  Hollister  v. 
Nowlen,  19  Wend.  236  [173],  they  say  that  "stage-coach  proprie- 
tors, and  other  carriers  by  land  and  water,  incur  a  very  different 
responsibility  in  relation  to  the  passenger  and  his  baggage.  For  an 
injury  to  the  passenger  they  are  answerable  only  where  there  has 
been  a  want  of  proper  care,  diligence,  or  skill;  but  in  relation  to 
baggage,  they  are  regarded  as  insurers,  and  must  answer  for  an}'  loss 
not  occasioned  by  inevitable  accident  or  the  public  enemies." 


568  CARRIERS  OF  PASSENGERS. 

In  a  case  which  occurred  in  respect  to  the  transportation  of  slaves, 
Boyce  v.  Antlerson,  2  Pet.  155  [488],  Chief  Justice  Marshall,  iu 
giviug  the  opinion  of  the  court,  says:  "The  law  applicable  to  com- 
mon carriers  is  one  of  great  rigor.  Though  to  the  extent  to  which 
it  has  been  carried,  and  in  cases  to  which  it  has  been  applied,  we 
admit  its  necessity  and  policy,  we  do  not  think  it  ought  to  be  car- 
ried further  or  applied  to  new  cases.  We  think  it  has  not  been 
applied  to  living  men,  and  that  it  ought  not  to  be  applied  to  them." 
So  in  the  case  of  Stokes  v.  Saltonstall,  13  Pet.  181,  the  question 
arose  and  was  thoroughly  discussed;  and  the  same  opinions  are 
maintained  as  in  the  cases  above  cited  from  Wendell.  And  the 
whole  subject  is  examined  by  Judge  Story,  in  his  Treatise  on  Bail- 
ments, §§  592-600,  with  his  usual   learning;    and  his  result  is  the 

same. 

If  there  is  a  discrepancy  between  the  English  authorities  which 
have  been  cited,  we  think  the  opinions  expressed  by  Chief  Justice 
Eyre  and  Chief  Justice  ^Mansfield  are  most  consonant  with  sound 
reason,  as  applicable  to  a  branch  of  the  law  comparatively  new,  and 
though  given  at  nisi  prius,  are  fully  sustained  by  the  discussions 
which  the  same  subject  has  undergone  in  the  courts  of  our  own 
country.  We  have  said,  as  being  most  consonant  with  sound  reason 
or  good  common  sense,  as  aMilied  to  so  ])ractical  a  siili.ieet;  Ix-cause, 
it  sunli  a  \v;irr;uitv"wcre  iinposeil  by  force  of  law  upon  the  i>r()i)rie- 
tors  of  coaches  and  otlier  vehicles  for  the  conveyance  of  passengers, 
tliev  would  "m  iact  become  tiie  warrantors  oi'  the  work  of  otliers. 
over  wlKjnrTTTey  have  no  actual  control,  and  — from  the  nu mber  of 
artisans  employed  in  the  c"onstruction  of  the  materials  of  a  sinde 
ccaeli  —  whom  tliey  could  iir)t  follow.  Unless,  therefore,  by  the 
application  of  a  similar  rule,  every  workman  shall  be  held  as  the 
warrantor,  in  all  events,  of  the  strength,  sufficiency,  and  adaptation 
of  his  own  manufactures  to  the  uses  designed  —  which,  in  a  com- 
munitylike ours,  could  not  be  practically  enforced  —  the  warranty 
would  really  rest  on  the  persons  ])urchasing  the  article  for  use^  and 
not  \\\>()\\  the  makers. 

If  it  should  l)e  saiil  that  the  same  oVjservations  miglit  be  ajjidied 

to  ship-owners,   the  answer  might  be  given,  that  they   have   never 

been  held  as  the  warrantors  of  tlie  safety  of  tlie  ])assengers  whom 

they  conveyed;  and  as  to  the  transportation  of  goods,  owners  of 

■  !: -ral  ships  have  always  been  held  as  common  carriers,   for  the 

.■•  rea.sons  that  carriers  on  land  are  bound  for  tlie  safe  delivery 

of  goods   intrusted  to  them.     P>ut  as   it  respects  the  seaworthiness 

of   a  sliip,  the  teelinical   rules  of  law   respecting  it  have  been  so 

repeatedly  examined,  and  the  facts  upon  which  they  rest  so  often 

investigated,  that  the  questions  whieli  arise  are  those  of  fact  and 

not  f,f  law,  and  in  a  vast  ]>ro]tortion  of  instances  dejiend  upon  the 

f  diligence  and  care  whieh  are  used  in  the  ])rcservatinn  of 

^  ;id  practically  resolve  themselves  into  (piestions  of  negli- 


LIABILITY   FOR   INJURIES.  569 

geuce;  so  that  the  evils  are  very  few  that  arise  from  the  mainte- 
nance of  the  doctrine  that  a  ship  must  be  seaworthy  in  order  to  be 
tlae  subject  of  insurance. 

The  result  to  wliich  we  have  arrived,  from  the  examination  of  the 
case  before  us,  is  this :  That  carriers  of  passengers  for  hire  are  bound 
to  use  the  utmost  care  and  diligence  in  the  providing  of  safe,  suffi- 
cient, and  suitable  coaches,  harnesses,  horses,  and  coachmen  in  order 
to  prevent  those  injuries  which  human  care  and  foresight  can  <j:uard 
against;  and  that  if  an  accident  happens  from  a  defect  in  the  coach, 
which  might  have  been  discovered  and  remedied  upon  the  most  care- 
ful and  thorough  examination  of  the  coach,  such  accident  must  be 
ascribed  to  negligencej_for_jvhich  the  owner  is  liable  in  case  of 
injury  to  a  passenger,  happening  by  reason  of  such  accident.  On 
the  other  hand,  where  the  accident  arises  from  a  hidden  and  inter- 
nal defect,  which  a  careful  and  thorough  examination  would  not 
disclose,  and  which  could  not  be  guarded  against  by  the  exercise  of 
a  sound  judgment  and  the  most  vigilant  oversight,  then  the  pro- 
prietor is  not  liable  for  the  injury,  but  the  misfortune  must  be  borne 
by  the  sufferer,  as  one  of  that  class  of  injuries  for  which  the  law 
can  afford  no  redress  in  the  form  of  a  pecuniary  recompense.  And 
we  are  of  opinion  that  the  instructions,  which  the  defendants'  coun- 
sel requested  might  be  given  to  the  jury  in  the  present  case,  were 
correct  in  point  of  law,  and  that  the  learned  judge  erred  in  extend- 
ing the  liability  of  the  defendants  further  than  was  proposed  in  the 
instructions  requested. 

The  point  arising  on  the  residue  of  the  instructions  was  not 
pressed  in  the  argument;  and  we  see  no  reason  to  doubt  its  correct- 
ness, provided  the  peril  to  which  the  plaintiff  was  exposed  arose  from 
a  defect  or  accident  for  which  the  defendants  were  otherwise  liable: 
Jones  V.  Boyce,  1  Stark.  R.  493. 

New  trial  granted. 


MEIER   V.   PENNSYLVANIA   R.    CO. 
64  Penn.  St.  225.     1870. 

This  was  an  action  on  the  case  for  negligence^  brought  February 
5th,  1868,  by  Theodore  G.  Meier  against  the  Pennsylvania  Railroad 
Company. 

The  plaintiff's  case  was  the  following:  — 

On  the  evening  of  February  7th,  1867,  Theodore  G.  INIeier,  the 
plaintiff  in  error,  took  passage  on  the_train  of  defendant's  cars  at 
Jersey  City,  bound  for  St.  Louis.  He  occuined  the  sleeping  car^ 
which  was  the  rear  car  of  the  train.  On  the  following  morning. 
about  eight  o'clock,  at  a  point  on  defendant's  road  between  Tyrone 


570  CARRIERS    OF    PASSENGERS. 

and  Altoona  —  the  train  running;  at  a  speed  of  twent.y-six  miles  to 
the  hour  on  an  ascendiu!:^  i^raJe  —  the  axle  of  the  forward  truck  broke 
111  two  places.  Tlie  end  of  the  car  then  dro])ped  down  and  siul  along 
th'.-  rails.  The  plaintiff  was  thrown  forward  so  that  his  knee  caught 
in  the  side-rest  of  "the  seat,  and  the  ligaments  of  the  right  knee- 
joint  were  torn,  and  the  bones  of  his  leg  were  severely  bruised. 

The  defendants  proved  that  new  wheels  and  new  axles  had  been 
put  under  the  car  in  October,  1S6G;  the  axles  were  made  at  the  Sligo 
Works  of  Lyon,  Shorb  «&:  Co.,  and  they  were  of  good  quality,  that 
the  train  had  been  inspected  seventy  miles  east  of  the  place  of  the 
accident,  and  again  twenty-two  miles  east  of  it;  the  truck  and  the 
road  were  in  good  order;  the  train  running  at  a  proper  speed.  They 
gave  a  large  amount  of  evidence  to  show  that  minute  and  constant 
care  had  been  exercised  to  keep  the  road,  apparatus,  cars,  running 
gear,  &c.,  in  perfect  order,  and  that  they  employed  such  appliances, 
&c.,  as  are  approved  by  the  most  experienced  railroad  operators  and 
mechanics;  and  gave  evidence  generally  for  the  purpose  of  showing 
that  they  used  the  utmost  care  that  human  knowledge,  skill,  and 
forf-sight  could  ]>rovide;  and  that  the  accident  was  due  to  some  cir- 
cumstance against  winch  these  could  not  guard. 

Verdict  for  the  defendants. 

AoNKw,  J.  It  is  agreed  on  all  hands,  saj's  Judge  Redfield,  in  his 
work  on  Railways,  ed.  1867,  p.  174,  that  carriers  of  passengers  are 
liable  only  for  negligence  either  proximate  or  remote,  and  that  they 
are  not  insurers  of  tlie  safety  of  their  passengers,  as  they  are  as  car- 
riers of  goods  and  baggage  of  passengers.  The  numerous  cases 
cited  from  which  this  result  is  drawn,  justify  this  statement:  Alden 
V.  X.  Y.  Central  Railroad  Co.,  26  X.  Y.  102,  holding  that  a  carrier 
is  bound  absolutely  to  provide  a  safe  vehicle,  irrespective  of  any 
question  of  negligence,  is  not  in  accord  with  the  American  cases 
generally,  or  the  modern  English  decisions.  It  is  reviewed  in 
Keadhead  v.  Midland  Railroad  Co.,  2  Law  Rep.  C.  B.  412,  and 
therein  said  not  to  be  founded  in  good  reason.  See  the  cases  col- 
lected in  Sliearman  &  Redtield  on  Negligence  (1S69),  200,  §  267. 

The  language  of  Judge  Gibson,  taken  from  N.  Jersey  Railroad  Co. 
V.  Kennard,  9  Harris,  204,  that  a  carrier  of  either  goods  or  passen- 
gers is  bound  to  provide  a  carriage  or  vehicle  perfect  in  all  its  parts, 
in  default  of  which  he  becomes  responsible  for  any  loss  or  injury 
that  may  be  suffered,  has  no  relation  to  the  question  now  before 
us.  The  case  lie  was  considering  was  that  of  a  car  made  witliout 
guards  at  the  windows  to  prevent  the  arms  of  passengers  being 
thrust  out,  to  their  injury,  which  lie  considered  a  defect  in  the  con- 
Btruction  of  the  car,  making  tlie  carrier  liable  for  negligence.  The 
car  was  not  jierfect  in  its  parts,  as  he  thouglit.  The  car  was  imper- 
fect in  construction,  and  therefore  not  adapted  to  tlie  end  to  be 
attained,  to  wit,  security.  It  may  not  be  amiss  to  say  that  this 
opinion  of  the  Chief  Justice  as  to  window  guards  was  not  sustained 


LIABILITY   FOIl   INJURIES.  ♦  571 

by  the  court  in  banc,  and  has  since  been  overruled  in  Pittsburg  & 
Connellsville  Railroad  Co.  v.  McCleary,  6  P.  E.  Smith,  294.  The 
doctrine  we  are  now  asked  to  sustain  is  that,  though  the  car  is  per- 
fect in  all  its  parts,  if  imperfect  from  some  latent  and  undiscover- 
able  defect,  which  the  utmost  skill  and  care  could  neither  perceive 
nor  provide  against,  the  railway  company  must  still  be  held  respon- 
sible for  injury  to  passengers,  on  the  ground  of  an  absolute  liability 
for  every  defect.  The  plaintiff  in  error  in  effect  contends  that  tlie 
defendants  were  warrantors  against  every  accident,  but  even  in 
the  case  referred  to,  Judge  Gibson  denied  this  rule.  He  said  of 
the  carrier,  he  is  bound  to  guard  him  (the  passenger)  from  every 
danger  which  extreme  vigilance  can  prevent.  This  expresses  the 
true  measure  of  responsibility.  He  answered  a  point  in  these 
words :  "  That  the  company  is  responsible  only  for  defects  discover- 
able by  a  careful  man  after  a  careful  examination  and  exercise  of 
sound  judgment."  Thus:  "This  is  true,  but  were  there  such  an 
examination  and  exercise  of  judgment?  The  defective  construction 
of  the  car  must  have  been  obvious  to  the  dullest  perception,"  &c. 
The  same  rule  was  laid  down  in  Laing  v.  Colder,  8  Barr.  482. 
Judge  Bell  says,  it  is  long  since  settled  that  the  common -law 
responsibilities  of  carriers  of  goods  for  hire  do  not  as  a  whole 
extend  to  carriers  of  passengers.  The  latter  are  not  insurers  against 
all  accidents.  But  though  (he  says)  in  legal  contemplation  they  do 
not  warrant  the  absolute  safety  of  their  passengers,  they  are  bound 
to  the  exercise  of  the  utmost  degree  of  diligence  and  care.  The 
slightest  neglect  against  which  human  prudence  and  foresight  may 
guard,  and  by  which  hurt  or  loss  is  occasioned,  will  render  them 
liable  in  damages.  The  same  doctrine  will  be  found  in  substance 
in  Railroad  Co.  v.  Aspell,  11  Harris,  149,  and  Sullivan  v.  The  Phil- 
adelphia &  Reading  Railroad  Co.,  6  Casey,  234,  and  in  other  cases. 
In  all  the  Pennsylvania  cases,  it  will  be  found  that  negligence  is 
the  ground  of  liability  on  the  part  of  a  carrier  of  passengers.  Abso- 
lute liability  requires  absolute  perfection  in  machinery  in  all 
respects,  which  is  impossible. 

The  utmost  which  human  knowledge,  human  skill,  and  human 
foresight  and  cTre  can  provide  is  all  that  in  reason  can  be  required. 
To  ask  more  is  to  prohibit  the  running  of  railways,  unless  thev  pos- 
sess a  capital  and  surplus  which  will  enable  them  to  add  a  new  ele- 
ment to  their  business,  that  of  insurance.  Nor  can  we  carry  the 
requirement  beyond  the  use  of  known  machinery  and  modes  of 
using  it.  Railroads  must  keep  pace  with  science  and  art  and  modern 
improvement  in  their  application  to  the  carriage  of  passengers,  but 
are  not  responsible  for  the  unknown  as  well  as  the  new.  The  rule 
laid  down  by  the  learned  judge,  in  the  language  quoted  in  the  second 
assignment  of  error,  is  a  correct  summary  of  the  law.  The  rule  of 
responsibility  differs  from  the  rule  of  evidepce.  Prima  facie, -where 
a  passenger,  being  carried  on  a  train,  is  iniured  without  fault  of  his 


572  CARRIERS   OF    PASSENGERS. 

o w n.  there  is  a  le^.^:il  presumption  of  iiei^ligence,  castiiii:^  upon  the 
carrier  the  onus  ut'  Jisju-ovin^'j;  it;  Laing  r.  Colder,  8  I^arr.  4S2; 
.Sullivan  r.  Philadelphia  &  Keadiug  liailroad  Co.,  G  Casey,  234; 
.Shearman  &  Redfield  on  Negl.  §  280;  Kedtield  on  Railways,  §  17G0, 
and  notes.  This  is  the  rule  when  the  injury  is  caused  by  a  defect 
in  the  road,  cars,  or  machinery,  or  by  a  want  of  diligence  or  care  in 
those  employed,  or  by  any  other  thing  which  the  company  can  and 
ought  to  control  as  a  part  of  its  duty  to  carry  the  passengers  safely; 
but  this  rule  of  evidence  is  not  conclusive.  The  carrier  may  rel)ut 
the  presuni]itiou  and  relieve  himself  from  resjionsibility  Viv  showiu'T 
tliat  the  injury  arose  from  an  accident  wliieh  tlie  utmost  skill,  fore- 
sight, and  diligence  could  not  ]irevcnt. 

We  think  none  of  the  errors  assigned  are  sustained,  and  the  judg- 
ment is  therefore  affirmed. 


STEAMBOAT   KEW    WORLD   v.    KING. 
16  How.  (U.  S.)  4G9.     1853. 

Tnis  was  an  appeal  from  the  District  Court  of  the  United  States 
for  tlie  Northern  District  of  California. 

It  was  libel  filed  by  King,  complaining  of  severe  personal  injury, 
disabling  him  for  life,  from  the  explosion  of  the  boiler  of  the  steam- 
boat "New  World,"  while  he  was  a  passenger,  on  her  passage  from 
Sacramento  to  San  Francisco,  in  California. 

The  District  Court  decreed  for  the  libellant  in  twentj'-five  hun- 
dred dollars  damages  and  costs;  and  the  owners  of  the  boat  appealed 
to  this  court. 

The  substance  of  the  evidence  is  stated  in  the  opinion  of  the 
court. 

Mr.  Justice  Cuiais.  This  is  an  appeal  from  a  decree  of  the 
District  Court  of  the  United  States  for  the  Northern  District  of 
California,  sitting  in  admiralty.  The  libel  alleges  tliat  the  appellee 
was  a  passenger  on  board  the  steamer  on  a  voyage  from  Sacramento 
to  San  Francisco,  in  June,  18.51,  and  tliat,  Avhile  navigating  within 
the  ebb  and  flow  of  the  tide,  a  boiler  flue  was  exjjloded  through  neg- 
ligence,  and  the  appellee  grievously  scalded  by  the  steam  and  hot 
water. 

The  answer  admits  that  an  explosion  occurred  at  tlie  lime  iuid 
])lace  alleged  in  the  libel,  and  that  the  .appellee  was  on  board  and 
wa.s  injured  thereby,  but  denies  that  he  was  a  passenger  Cur  hire,  or 
that  tlie  explosion  was  the  consequence  of  negligence. 

Ti  :ico  shows  that  it  is  ctistomary  for  the  masters  of  steam- 

boa?  lit  persons  wliose  usual  employment  is  on  board  of  such 


LIABILITY   FOE   INJURIES.  573 

boats  to  go  from  place  to  place  free  of  charge ;  that  the  appellee  had 
formerly  been  employed  as  a  waiter  on  board  tliis  boat;  and  just 
before  she  sailed  from  Sacramento  he  applied  to  the  master  for  a 
free  passage  to  San  Francisco,  which  was  granted  to  him,  and  he 
came  on  board. 

It  has  been  urged  that  the  master  had  no  power  to  impose  any 
obligation  on  the  steamboat  by  receiving  a  passenger  without 
compensation. 

But  it  cannot  be  necessary  that  the  compensation  should  be  in 
money,  or  that  it  should  accrue  directly  to  the  owners  of  the  boat. 
If  the  master  acted  under  an  authority  usually  exercised  by  masters 
of  steamboats,  if  such  exercise  of  authority  must  be  presumed  to  be 
known  to  and  acquiesced  in  by  the  owners,  and  the  practice  is,  even 
indirectly,  beneficial  to  them,  it  must  be  considered  to  have  been  a 
lawful  exercise  of  an  authority  incident  to  his  command. 

It  is  proved  that  the  custom  thus  to  receive  steamboat  men  is 
general.  The  owners  must  therefore  be  taken  to  have  known  it, 
and  to  have  acquiesced  in  it,  inasmuch  as  they  did  not  forbid  the 
master  to  conform  to  it.  And  the  fair  presumption  is,  that  the 
custom  is  one  beneficial  to  themselves.  Any  privilege  generally 
accorded  to  persons  in  a  particular  employment  tends  to  render  that 
employment  more  desirable,  and  of  course  to  enable  the  employer 
more  easily  and  cheaply  to  obtain  men  to  supply  his  v/ants. 

It  is  true  the  master  of  a  steamboat,  like  other  agents,  has  not  an 
unlimited  authority.  He  is  the  agent  of  the  owner  to  do  only  what 
is  usually  done  in  the  particular  employment  in  which  he  is  engaged. 
Such  is  the  general  result  of  the  authorities.  Smith  on  Mer.  Law, 
559;  Grant  v.  Norway,  10  Com.  B.  688,  S.  C.  2  Eng.  L.  and  Eq. 
337;  Pope  v.  Nickerson,  3  Story,  K.  475;  Citizens  Bank  v.  Nan- 
tucket Steamboat  Co. ,  2  Story,  E.  32.  But  different  employments 
may  and  do  have  different  usages,  and  consequently  confer  on  the 
master  different  powers.  And  when,  as  in  this  case,  a  usage  appears 
to  be  genera],  not  unreasonable  in  itself,  and  indirectly  beneficial  to 
the  owner,  we  are  of  opinion  the  master  has  power  to  act  under  it 
and  bind  the  owner. 

The  appellee  must  be  deemed  to  have  been  lawfully  on  board 
under  this  general  custom. 

Whether  precisely  the  same  obligations  in  all  respects  on  the  part 
of  the  master  and  owners  and  their  boat  existed  in  his  case,  as  in 
that  of  an  ordinary  passenger  paying  fare,  we  do  not  find  it  neces- 
sary to  determine.  In  the  Philadelphia  and  Keading  Eailroad  Com- 
pany V.  Derby,  14  How.  R.  486,  which  Avas  a  case  of  gratuitous 
carriage  of  a  passenger  on  a  railroad,  this  court  said:  "When  car- 
riers  undertake  to  convey  persons  by  the  powerful  but  dangerous 
agency  of  steam,  public  policy  and  safety  require  that  they  should 
be  held  to  the  greatest  possible  care  and  diligence.  And  whether 
the  consideration  for  such  transportation  be  pecuniary  or  otherwise. 


574  CARRIERS  OF  PASSENGERS. 

the  personal  safety  of  passengers  should  not  be  left  to  the  sport  of 
chance  or  the  negligence  of  careless  agents.  Any  negligence,  in 
such  cases,  may  well  deserve  the  epithet  of  gross." 

We  desire  to  be  understood  to  reaffirm  that  doctrine,  as  resting, 
not  only  on  public  policy,  but  on  sound  principles  of  law. 

The  theory  that  there  are  three  degrees  of  negligence,  described 
by  the  terms  slight,  ordinary,  and  gross,  has  been  introduced  into 
the  common  law  from  some  of  the  commentators  on  the  Roman  law. 
It  may  be  doubted  if  these  terms  can  be  usefully  applied  in  prac- 
tice. Their  meaning  is  not  fixed,  or  capable  of  being  so.  One 
degree,  thus  described,  not  only  may  be  confounded  with  another, 
but  it  is  quite  impracticable  exactly  to  distinguish  them.  Their 
signification  necessarily  varies  according  to  circumstances,  to  Avhose 
influence  the  courts  have  been  forced  to  yield,  until  there  are  so 
many  real  exceptions  that  the  rules  themselves  can  scarcely  be  said 
to  have  a  general  operation.  In  Storer  r.  Gowen,  18  Maine  R. 
177,  the  Supreme  Court  of  Elaine  say:  "How  much  care  will,  in  a 
given  case,  relieve  a  party  from  the  imputation  of  gross  negligence, 
or  what  omission  will  amount  to  the  charge,  is  necessarily  a  ques- 
tion of  fact,  depending  on  a  great  variety  of  circumstances  which 
the  law  cannot  exactly  define."  Mr.  Justice  Story,  Bailments,  §  11, 
says:  "Indeed,  what  is  common  or  ordinary  diligence  is  more  a 
matter  of  fact  than  of  law."  If  the  law  furnishes  no  definition  of 
the  terms  gross  negligence  or  ordinary  negligence,  which  can  be 
applied  in  practice,  but  leaves  it  to  the  jury  to  determine,  in  each 
case,  what  the  duty  was,  and  what  omissions  amount  to  a  breach 
of  it,  it  would  seem  that  imperfect  and  confessedly  unsuccessful 
attempts  to  define  that  duty  had  better  be  abandoned. 

Recently  the  judges  of  several  courts  have  expressed  their  dis- 
approbation of  these  attempts  to  fix  the  degrees  of  diligence  by  legal 
definitions  and  have  complained  of  tlie  impracticability  of  applying 
th.-m.  AVilson  v.  Brett,  11  Meeson  &  Wels.  113;  Wyld  /-.  Pickford, 
8  l/j.  44;j,  461,  4G2;  Hinton  v.  Dibbin,  2  Q.  B.  646,  651.  It  must 
be  confessed  that  the  difficulty  in  defining  gross  negligence,  which 
is  ajtparent  in  perusing  such  cases  as  Tracy  ft  al.  v.  Wood,  3  Mason, 
l.'>2,  and  Foster  v.  The  Essex  Bank,  17  Mass.  479,  R.,  would  alone 
be  sufficient  to  justify  these  comjjlaints.  It  may  be  added  that  some 
of  the  ablest  commentators  on  the  Roman  law  and  on  the  Civil  Code 
of  France  have  wholly  repudiated  tliis  theory  of  three  degrees  of 
'  '•  as  unfounded  in  principles  of  natural  justice,  useless  in 

.  ,   and   j>reHenting  inextricable  embarrassments   and  difficul- 

ties. See  Touillier's  Droit  Civil,  6th  vol.,  \).  230,  «S:c. ;  11th  vol., 
p.  203,  &c. ;  Makeldey,  Man.  Du  Droit  Romain,  191,  cScc. 

But  whether  this  term  gross  negligence  be  used  or  not,  this  par- 
'  ise  is  one  of  gross  negligence  according  to  the  tests  which 

'  n  applied  to  such  a  case. 

In  the  first  place,  it  is  settled  that"tlie  bailee  must  proportion 


LIABILITY    FOR   INJURIES.  575 

his  care  to  the  injury  or  loss  which  is  likely  to  be  sustained  by  any 
improvidence  on  his  part."     Story  on  Bailments,  §  15. 

It  is  also  settled  that,  if  the  occupation  or  employment  be  one 
requiring  skill,  the  failure  to  exert  that  needful  skill,  either  because 
it  is  not  possessed  or  from  inattention,  is  gross  negligence.  Thus 
Heath,  J.,  in  Shields  v.  Blackburn,  1  H.  Bl.  161,  says:  "If  a  man 
applies  to  a  surgeon  to  attend  him  in  a  disorder,  for  a  reward,  and 
the  surgeon  treats  him  improperly,  there  is  gross  negligence,  and  the 
surgeon  is  liable  to  an  action.  The  surgeon  would  also  be  liable  for 
such  negligence  if  he  undertook,  gratis,  to  attend  a  sick  person, 
because  his  situation  implies  skill  in  surgery."  And  Lord  Lough- 
borough declares  that  an  omission  to  use  skill  is  gross  negligence. 
Mr.  Justice  Story,  although  he  controverts  the  doctrine  of  Pothier 
that  any  negligence  renders  a  gratuitous  bailee  responsible  for  the 
loss  occasioned  by  his  fault,  and  also  the  distinction  made  by  Sir 
William  Jones  between  an  undertaking  to  carry  and  an  undertaking 
to  do  work,  yet  admits  that  the  responsibility  exists  where  there  is  a 
want  of  due  skill  or  an  omission  to  exercise  it.  And  the  same  may 
be  said  of  Mr.  Justice  Porter  in  Percy  v.  Millaudon,  20  Martin,  75. 
This  qualification  of  the  rule  is  also  recognized  in  Stanton  et  al.  v. 
Bell  et  al.,  2  Hawks,  145. 

That  the  proper  management  of  the  boilers  and  machinery  of  a 
steamboat  requires  skill,  must  be  admitted.  Indeed,  by  the  Act 
of  Congress  of  August  30,  1852,  great  and  unusual  precautions  are 
taken  to  exclude  from  this  employment  all  persons  who  do  not  pos- 
sess it.  That  an  omission  to  exercise  this  skill  vigilantly  and 
faithfully,  endangers,  to  a  frightful  extent,  the  lives  and  limbs  of 
great  numbers  of  human  beings,  the  awful  destruction  of  life  in  our 
country  by  explosions  of  steam  boilers  but  too  painfully  proves. 
We  do  not  hesitate,  therefore,  to  declare  that  negligence  in  the  care 
or  management  of  such  boilers,  for  which  skill  is  necessary,  the 
probable  consequence  of  which  negligence  is  injury  and  loss  of  the 
most  disastrous  kind,  is  to  be  deemed  culpable  negligence,  render- 
ing the  owners  and  the  boat  liable  for  damages,  even  in  case  of  the 
gratuitous  carriage  of  a  passenger.  Indeed,  as  to  explosion  of 
boilers  and  flues,  or  other  dangerous  escape  of  steam  on  board 
steamboats.  Congress  has,  in  clear  terms,  excluded  all  such  cases 
from  the  operation  of  a  rule  requiring  gross  negligence  to  be 
proved  to  lay  the  foundation  of  an  action  for  damages  to  person 
or  property. 

The  thirteenth  section  of  the  Act  of  July  7, 1838,  5  Stat,  at  Large , 
306,  provides :  "  That  in  all  suits  and  actions  against  proprietors  of 
steamboats  for  injury  arising  to  persons  or  property  from  the  burst- 
ing of  the  boiler  of  any  steamboat,  or  the  collapse  of  a  flue,  or  other 
dangerous  escape  of  steam,  the  fact  of  such  bursting,  collapse,  or 
injurious  escape  of  steam  shall  be  taken  as  full  j^rima  facie  evidence 
sufficient  to  charge  the  defendant,  or  those  in  his  employment,  with 


576  CARRIER^   OF   PASSENGERS. 

uegligence,  until  he  shall  show  that  uo  negligence  has  been  com- 
mitted by  him  or  those  in  his  employment." 

This  Ciise  falls  within  this  section;  and  it  is  therefore  ii\cumbent 
on  the  claimants  to  prove  that  no  negligence  has  been  committed  by 
those  in  their  employment. 

Have  they  proved  this?  It  appears  that  the  disaster  happened 
a  short  distance  above  Benicia;  that  another  steamer,  called  the 
"Wilson  G.  Hunt,"  was  then  about  a  quarter  of  a  mile  astern  of  the 
"Xew  World,"  and  that  the  boat  first  arriving  at  Benicia  got  from 
twenty-five  to  fifty  passengers.  The  pilot  of  the  "  Hunt "  says  he 
hardly  knows  whether  the  boats  were  racing,  but  both  were  doing 
their  best,  and  this  is  confirmed  by  the  assistant  pilot,  who  says  the 
boats  were  always  supposed  to  come  down  as  fast  as  possible;  the 
first  boat  at  Benicia  gets  from  twenty-five  to  fifty  passengers.  And 
he  adds  that  at  a  particular  place  called  "  the  slough  "  the  "  Hunt " 
attempted  to  pass  the  "Xew  World."  Fay,  a  passenger  on  board 
the  ''Xew  World,"  swears  that  on  two  occasions  before  reaching 
"the  slough"  the  "Hunt"  attempted  to  pass  the  "New  World,"  and 
failed;  that  to  his  knowledge  these  boats  had  been  in  the  habit  of 
contending  for  the  mastery,  and  on  this  occasion  both  were  doing 
their  best.  Tlie  fact  that  the  "Hunt"  attempted  to  pass  the  "Xew 
World"  in  "the  slough"  is  denied  by  two  of  the  respondents'  wit- 
nesses, but  they  do  not  meet  the  testimony  of  Fay,  as  to  the  two 
previous  attempts.  Haskell,  another  passenger,  says:  "About  ten 
minutes  before  the  explosion  I  was  standing  looking  at  the  engine; 
we  saw  the  engineer  was  evidently  excited,  by  his  running  to  a  little 
window  to  look  out  at  the  boat  behind.  He  repeated  this  ten  or 
fifteen  times  in  a  very  short  time."  The  master,  clerk,  engineer, 
assistant  engineer,  pilot,  one  fireman,  and  the  steward  of  the  "  New 
World  "  were  examined  on  behalf  of  the  claimants.  No  one  of  them, 
save  the  pilot,  denies  the  fact  that  the  boats  were  racing.  W' itli  the 
exception  of  the  pilot  and  the  engineer,  they  are  wliolly  silent  on 
the  subject.  The  pilot  says  they  were  not  racing.  The  engineer 
Bays:  "We  have  had  some  little  strife  between  us  and  the  *  Hunt' 
as  to  who  should  get  to  J»enifia  first.  There  was  an  agreement  made 
tliat  we  should  go  first.  I  think  it  was  a  trip  or  two  before."  Con- 
sidering that  the  master  says  nothing  of  any  such  agreement,  that  it 
docs  not  appear  to  have  been  known  to  any  other  person  on  board 
either  boat,  that  this  witness  and  the  pilot  were  botli  directly  con- 
ncctfMl  with  and  responsible  for  the  negligence  charged,  and  tliat 
the  fact  of  racing  is  substantially  sworn  to  by  two  passengers  on 
board  the  "New  World,"  and  by  the  pilot  and  assistant  pilot  of  the 
"Hunt,"  and  is  not  denied  by  the  master  of  the  "New  World,"  we 
cannot  avoid  the  conclusion  that  the  fact  is  proved.  And  certainly 
it  greatly  increases  the  burden  wliieli  the  Act  of  Congress  has  thrown 
on  the  claimants.  It  is  possible  that  those  managing  a  steamboat 
enga(;ed  in  a  race  may  use  all  tliat  care  and  adopt  all  those  i»recau- 


LIABILITY    FOE   INJUEIES.  577 

tions  which  the  dangerous  power  they  employ  renders  necessary  to 
safety.  But  it  is  highly  improbable.  The  excitement  engendered, 
by  strife  for  victory  is  not  a  fit  temper  of  mind  for  men  on  whose 
judgment,  vigilance,  coolness,  and  skill  the  lives  of  passengers 
depend.  And  when  a  disastrous  explosion  has  occurred  in  such  a 
strife,  this  court  cannot  treat  the  evidence  of  those  engaged  in  it, 
Siud  prim  a  facie  responsible  for  its  consequences,  as  sufficient  to  dis- 
prove their  own  negligence,  which  the  law  presumes. 

We  consider  the  testimony  of  the  assistant  engineer  and  fireman, 
who  are  the  only  witnesses  who  speak  to  the  quantity  of  steam 
carried,  as  wholly  unsatisfactory.  They  say  the  boiler  was  allowed 
by  the  inspector  to  carry  forty  pounds  to  the  inch,  and  that  when 
the  explosion  occurred  they  were  cai-rying  but  twenty-three  pounds. 
The  principal  engineer  says  he  does  not  remember  how  much  steam 
they  had  on.  The  master  is  silent  on  the  subject  and  says  nothing 
as  to  the  speed  of  the  boat.  The  clear  weight  of  the  evidence  is 
that  the  boat  was,  to  use  the  language  of  some  of  the  witnesses, 
doing  its  best.  We  are  not  convinced  that  she  was  carrying  only 
twenty-three  pounds,  little  more  than  half  her  allowance. 

This  is  the  only  evidence  by  which  the  claimants  have  endeavored 
to  encounter  the  presumption  of  negligence.  In  our  opinion  it  does 
not  disprove  it;  and  consequently  the  claimants  are  liable  to  damages, 
and  the  decree  of  the  District  Court  must  be  afiirmed. 

Mr.  Justice  Daniel  dissented. 


McPADDEN  V.   NEW   YOEK   CENTRAL   R.  CO. 
44  N  y.  478.     1871. 

Appeal  from  a  decision  of  the  General  Term  of  the  Supreme 
Court  in  the  seventh  district  upon  exceptions  there  heard  in  the 
first  instance,  granting  a  new  trial. 

This  action  was  brought  to  recover  for  injuries  sustained  by  the 
plaintiff,  while  a  passenger  upon  the  defendant's  road.  The  cause 
was  tried  at  the  Rochester  Circuit,  in  January,  1865;  and  it  appeared, 
among  other  things,  that  on  the  5th  day  of  January,  1864,  the  plain- 
tiff took  passage  on  a  train  at  Rochester  going  westerly,  intending 
to  go  to  Knowlesville.  The  train  stopped  at  Brockport,  and  there 
met  a  train  coming  east.  About  half  a  mile  west  of  Brockport  the 
two  passenger  cars  of  the  train  going  west  were  thrown  from  the 
track,  and  the  car  in  which  the  plaintiff  was  riding  was  overturned, 
and  he  was  injured.  The  train  going  west  was  not  under  full  head- 
way, going  at  the  rate  of  about  twenty-five  miles  per  hour.  The 
train  going  east  passed  the  place  of  the  accident  at  the  rate  of 
twenty-five  to  thirty  miles  per  hour. 

37 


578  CARRIERS   OF   PASSENGERS. 

The  accident  was  caused  by  a  broken  rail,  —  a  piece  of  the  rail, 
about  four  feet  in  length,  being  broken  in  three  or  four  pieces.  All 
the  witnesses  who  testified  upon  the  subject  testified  that  the  rail 
was  a  good,  sound,  and  perfect  rail,  and  in  all  respects  properly 
placed  and  fastened,  and  they  attributed  the  breaking  to  the  cold- 
ness of  the  weather,  it  being  a  very  cold  morning.  A  track  watch- 
man went  over  the  track  three  miles  west  of  Brockport,  starting  at 
three  o'clock  that  morning,  and  a  train  followed  him  west  in  about 
an  hour.  He  then  returned  over  the  road  to  Brockport,  reaching 
there  a  little  before  six  o'clock,  a  short  time  before  the  accident. 
After  the  train  passed  east,  he  had  no  time  to  go  over  the  road  again 
before  this  train  went  west.  When  he  went  over  the  road  he  found 
it  in  order.  The  plaintiff's  witnesses  testified  that  all  the  cars  were 
off  from  the  track  but  the  locomotive.  The  defendant's  witnesses 
testified  that  the  passenger  cars  and  the  hind  wheels  of  the  baggage 
car  were  off  the  track.  The  conductor  and  engineer  of  the  train 
going  eastward  testified  that  they  did  not  notice  any  jolt  at  the  place 
of  the  accident  of  their  train,  and  that  if  the  rail  had  been  broken 
and  displaced  by  their  train  they  would  have  noticed  it.  The 
engineer  of  the  train  going  west  testified  that  he  did  not  discover 
that  any  rail  was  displaced,  and  would  have  discovered  it  if  one  had 
been  displaced  before  his  engine  passed  over,  and  the  conductor  of 
this  train  testified  that  he.  could  feel  the  jog  when  a  rail  was  dis- 
placed. This  testimony  of  the  conductors  and  engineers  was  uncon- 
tradicted. 

At  the  close  of  the  evidence  the  counsel  for  the  defendant  moved 
for  a  nonsuit  upon  the  ground  that  there  was  no  proof  of  negligence 
or  omission  of  duty  on  the  part  of  the  defendant,  but  that  there  was 
clear  evidence  that  every  precaution  to  insure  safety  to  passengers 
had  been  taken.  The  counsel  for  the  plaintiff  then  asked  to  go  to 
the  jury  upon  the  question  whether  the  rail  was  broken  before  the 
train  going  west  came  upon  it.  The  court  refused  permission  to  him 
to  do  so,  and  nonsuited  the  plaintiff,  and  his  counsel  excepted,  but 
flid  not  refpiest  to  go  to  the  jury  ui)on  an}^  other  question. 

The  (ieneral  Term  made  an  order  granting  a  now  trial,  and  the 
defendant  appealed  from  such  order  to  this  court,  stipulating  for 
judgment  absolute  in  case  the  order  should  be  affirmed. 

EAKr>,(J.  The  General  Term  granted  a  new  trial,  upon  the  ground 
that  the  judge,  at  the  Circuit,  should  have  submitted  to  the  jury  the 
question,  whether  the  rail  was  broken  before  it  was  reached  by  the 
train  going  west  carrying  the  plaintiff;  and  it  held,  if  it  was  thus 
broken,  that  the  defendant  was  liable,  irrespective  of  any  question 
of  negligence,  within  the  i)rinciple  of  the  case  of  Alden  i'.  Tlie  X. 
Y.  C.  It.  K.  Co.,  2G  N.  Y.  loii,  ui)on  the  ground  that  it  was  bouiKl 
to  furnish  a  roa<l  adai)ted  to  the  safe  passage  of  trains,  or,  in  otlu^r 
wordfl,  "a  vehicle-worthy  rftad." 

I  am  obliged  to  differ  witli  the  General  Term,  for  two  reasons: 


LIABILITY    FOR   INJURIES.  579 

1st.  If  the  rail  was  broken  before  it  was  reached  by  the  train  going 
west,  it  must  have  been  broken  by  the  train  going  east  shortly 
before,  and  there  is  no  evidence  whatever  that  it  was  broken  by 
that  train.  All  the  evidence  tends  to  show  that  it  was  broken  by 
the  train  going  west.  Such  is  the  evidence  of  the  conductors  and 
engineers  of  both  trains.  There  is  no  presumption  that  the  rail  was 
broken  before  this  train  reached  it.  It  is  unquestioned  that  the 
accident  was  caused  by  the  broken  rail,  and  if  the  plaintiff  claimed 
that  the  defendant  was  liable,  because  the  rail  was  broken  before  the 
train  upon  which  he  was  riding  reached  it,  it  was  incumbent  upon 
him  to  prove  it.  This  he  failed  to  do;  and  if  the  jury  upon  the 
evidence  had  found  it,  it  would  have  been  the  duty  of  the  court  to 
set  the  verdict  aside  as  against  the  evidence. 

But  there  is  another  reason.  It  does  not  appear  that  plaintiff's 
counsel,  upon  the  trial,  claimed  that  he  had  shown  any  negligence 
against  the  defendant,  and  he  did  not  claim  to  go  to  the  jury  upon 
any  such  question,  and  the  General  Term  did  not  grant  a  new  trial 
upon  the  ground  that  there  was  any  question  of  negligence  in  the 
case,  which  ought  to  have  been  submitted  to  the  jury,  but  upon  the 
ground  above  stated. 

In  the  case  of  Alden  v.  The  New  York  Central  Railroad  Company, 
the  accident,  by  which  the  plaintiff  was  injured,  was  caused  by  the 
breaking  of  an  axle  of  the  car  in  which  the  plaintiff  was  riding,  and 
it  was  held  that  a  common  carrier  is  bound  absolutely,  and  irrespec- 
tive of  negligence,  to  provide  roadworthy  vehicles,  and  that  the 
defendant  was  liable  for  the  plaintiff's  injuries,  caused  by  a  crack  in 
the  axle,  although  the  defect  could  not  have  been  discovered  by  any 
practicable  mode  of  examination.  That  case  was  a  departure  from 
every  prior  decision  and  authority  to  be  found  in  the  books  of  this 
country  or  England,  and,  so  far  as  I  can  learn,  has  never  been  fol- 
lowed anywhere  out  of  this  State.  It  was  in  conflict  with  the 
previous  case,  in  the  same  court,  of  Hegeman  v.  The  Western  Rail- 
road Corporation,  3  Kern.  9.  The  only  authority  cited  to  sustain 
the  decision  was  the  English  case  of  Sharp  v.  Grey,  9  Bing.  457, 
and  yet  the  decision  has  been  distinctly  repudiated  in  England,  in 
the  well-considered  case  of  Readhead  v.  Midland  Railway  Co. ,  first 
decided  in  the  Queen's  Bench,  Law  Reports,  2  Q.  B.  412,  and  then 
on  appeal  in  the  Exchequer  Chamber,  Law  Reports,  4  Q.  B.  379, 
where  it  was  unanimously  affirmed  in  1869 ;  and  the  court  held  that 
the  contract,  made  by  a  common  carrier  of  passengers  for  hire,  with 
a  passenger,  is  to  take  due  care  (including  in  that  term  the  use  of 
skill  and  foresight)  to  carry  the  passenger  safely,  and  that  it  does 
not  contain  or  imply  a  warranty  that  the  carriage  in  which  he  travels 
shall  be  in  all  respects  perfect  for  its  purpose  and  roadworthy.  In 
the  Exchequer  Chamber  Mr.  Justice  Smith,  writing  the  opinion  of 
the  court,  alludes  to  the  case  of  Alden  v.  The  New  York  Central 
Railroad  Company,  and  dissents   from  it,  and  comments  upon  the 


580  CAKRIERS   OF   PASSENGERS. 

case  of  Sharp  v.  Grey,  relied  upon  in  that  case,  and  he  shows  clearly 
that  it  was  no  authority  for  the  broad  doctrine  laid  down  in  that 
case.  He  says :  "  We  have  referred  somewhat  fully  to  this  case, 
Sharp  r.  Grey,  because  it  was  put  forward  as  the  strongest  authority 
in  support  of  the  plaintiff's  claim,  which  can  be  found  in  the  English 
courts,  and  because  it  was  relied  on  by  the  judges  of  the  Court  of 
Appeals,  in  New  York,  in  a  decision  which  will  be  afterward 
referred  to.  But  the  case,  when  examined,  furnishes  no  sufficient 
authority  for  the  unlimited  warranty  now  contended  for.  The  facts 
do  not  raise  the  point  for  decision."  Hence  the  case  of  Akleu  i\ 
The  New  York  Central  Railroad  Company  has  no  foundation  of 
authority,  whatever,  to  rest  on,  and  the  only  reason  given  for  the 
decision  is  that  the  new  rule  adopted  would  be  plainer  and  easier 
of  application  than  the  one  that  had  been  recognized  and  acted  upon 
for  hundreds  of  j-ears.  It  was  always  supposed  that  there  was  a 
difference,  founded  upon  substantial  reasons,  between  the  liability 
of  the  common  carrier  of  goods  and  the  common  carrier  of  passen- 
gers. The  former  was  held  to  warrant  the  safe  carriage  of  the 
goods,  except  against  loss  or  damage  from  the  act  of  God  or  the 
public  enemy;  but  the  latter  was  held  to  contract  only  for  due  and 
proper  care  in  the  carriage  of  passengers. 

I  have  thus  commented  upon  and  alluded  to  the  case  of  Alden  v. 
The  Xew  York  Central  Railroad  Company,  with  no  design  to  repu- 
diate it  as  authority,  but  for  the  purpose  of  claiming  that  it  is  a 
decision  which  should  not  be  extended.  I  am  unwilling  to  apply  it 
to  every  case  that  apparently  comes  within  its  principle;  nor  would 
I  limit  it  to  the  car  in  which  the  passenger  was  riding.  The  whole 
train  must  be  regarded  as  the  veliicle;  and  the  engine  and  all  the 
cars  attached  together  must  be  free  from  defect  and  roadworthy, 
irrespective  of  negligence.  So  far,  and  no  farther,  am  I  willing  to 
regard  that  case  as  authority.  Shall  it  be  applied  to  steamboats 
and  vessels,  common  carriers  of  passengers  upon  the  ocean  and  our 
inland  waters?  Shall  it  apjily  to  innkeei)ers,  proprietors  of  theatres 
and  other  places  of  public  resort,  who  invite  the  public  into  their 
buildings,  for  a  compensation?  And  shall  all  such  persons  be  held 
to  an  implied  warranty  that  their  buildings,  with  the  appurtenances, 
are  suitalde  and  i)roper,  and  free  from  all  defects  which  no  foresight 
could  guard  against  or  skill  detect?  Shall  it  be  ajiplied  to  the  road- 
)'<-d  of  a  railroad?     If  so  applied,  where  shall  it  stop?     It  must  also 

•■  nd  to  the  bridges,  masonry,  signals,  and,  in  fact,  to  all  the 

'  parts  of  tlie  system  employed  and  used  in  the  transjiort  of 

IS  by  railroad.     And,  as  railroad  companies  are  resi)on.sil)le 

for  tl»e  skill  .and  care  of  all  their  human  agents,  such  an  extension 

of  that  decision  would  make  them  substantial  insurers  of  the  safety 

of  all  their  passengers,  and  thus  practically  abolish  the  distinction 

tho  liability  of  the  carriers  of  passengers  and  the  carriers 

While  such  a  rule  would  "bo  plain  and  easy  of  applica- 


LIABILITY   FOR   INJURIES.  581 

tion,"  I  am  not  satisfied  that  it  would  be  either  wise  or  just.  Eail- 
roads  are  great  public  improvements,  beneficial  to  the  owners,  and 
highly  useful  to  the  public.  There  is  a  certain  amount  of  risk  inci- 
dent to  railroad  travel  which  the  traveller  knowingly  assumes;  and 
public  policy  is  fully  satisfied  when  railroad  companies  are  held  to 
the  most  rigid  responsibility  for  the  utmost  care  and  vigilance  for 
the  safety  of  travellers. 

If,  therefore,  the  jury  had  found  that  the  rail  was  broken  by  the 
eastward-bound  train,  it  would  still  have  been  a  case  of  mere  acci- 
dent, caused  without  any  want  of  proper  care  and  vigilance  on  the 
part  of  the  defendant,  and  the  defendant  would  not  have  been 
liable. 

I  am,  therefore,  in  favor  of  reversing  the  order  of  the  General 
Term,  and  ordering  judgment  upon  the  nonsuit  for  the  defendant, 
with  costs. 

LoTT,  Ch.  C,  and  Leonaed,  C,  delivered  opinions  in  favor  of 
reversal. 

Order  of  the  General  Term  reversed,  with  costs,  and  judgment 
upon  the  nonsuit  ordered,  with  costs.     Hunt,  C,  dissenting. 


GRAND  RAPIDS,    etc.,    R.    CO.    v.    HUNTLEY". 
38  Mich.  537.     1878. 

Trespass  on  the  case.     Defendant  brings  error. 

Campbell,  C.  J.  Suit  was  brought  by  Mrs.  Huntley  for  personal 
injuries  suffered  on  the  5th  day  of  November,  1874,  by  reason  of  an 
accident  caused  by  a  passenger  car  being  thrown  from  the  track  and 
upset.  The  testimony  showed  that  the  mischief  was  caused  by  the 
breaking  of  an  axle  containing  a  large  flaw,  within  the  wheel  or 
near  its  edge.  Those  witnesses  who  made  any  actual  examination 
found  the  flaw  entirely  within  the  axle,  and  covered  by  a  small 
thickness  of  sound  metal.  The  suit  was  tried  in  April,  1877,  about 
two  years  and  a  half  after  the  accident.  Mrs.  Huntley  was  injured 
in  the  shoulder,  and  claimed  that  the  injury  was  permanent. 

Testimony  was  introduced  bearing  upon  the  condition  of  the  cars 
and  track,  and  the  speed  of  the  train,  as  well  as  concerning  the  char- 
acter of  the  injury.  The  principal  questions  arise  upon  the  medical 
testimony  and  upon  the  charge;  although  some  other  points  are 
presented. 

The  principal  remaining  questions  arise  out  of  the  rules  of  lia- 
bility established  by  the  charge. 


582  CARRIERS   OF   PASSENGERS. 

The  primary  cause  of  the  accident  was  the  broken  axle.  Some 
stress  seems  also  to  have  been  laid  on  the  condition  of  the  track  and 
the  rate  of  speed.  So  far  as  appears  upon  the  record,  we  have  not 
discovered  any  proper  evidence  to  authorize  these  matters  to  be  con- 
sidered. There  is  .no  testimony  from  such  persons  as  are  qualified 
to  give  opinions  on  the  subject  that  either  the  condition  of  the  road 
or  the  speed  indicated  negligence.  Whether  the  structure  of  the 
road  is  such  as  to  warrant  fast  travel  is  not  a  question  which  usually 
belongs  to  ordinary  witnesses,  and  it  would  be  dangerous  to  allow 
a  jury  to  act  on  its  own  suspicious  or  prejudices  in  such  a  matter. 
The  road,  if  in  such  a  condition  as  would  be  regarded  as  safe  by 
railroad  men  of  usual  intelligence  and  experience,  could  not  be  com- 
jdained  of  for  any  possible  deficiencies  which  would  not  be  regarded 
by  competent  persons  as  existing,  nor  could  the  rate  of  speed  be 
properly  held  excessive  without  similar  evidence  from  men  of 
experience.  It  is  a  matter  of  daily  occurrence  in  many  parts  of  the 
country,  and  of  occasional  occurrence  everywhere,  for  cars  to  be  run 
at  very  high  rates  of  speed  on  railway  tracks.  Xo  particular  rate 
can  be  assumed,  without  proof,  to  be  dangerous. 

The  main  question,  however,  relates  to  responsibility  for  the  con- 
dition of  the  axle.  It  was  held  by  the  court  below  that  no  diligence 
or  care  in  the  railroad  company  could  exempt  them  from  want  of 
care  in  the  manufacturers  of  the  cars  and  axles. 

This  doctrine  is,  we  think,  entirely  incorrect.  Carriers  of  freight 
are  liable  whether  careful  or  not,  for  any  act  or  damage  not  caused 
by  the  act  of  God,  or  of  the  public  enemy.  Their  liability ,  therefore, 
does  not  arise  from  negligence  or  want  of  care.  It  arises  from  their 
failure  to  make  an  absolutely  safe  carriage  and  delivery,  which  they 
insure  by  their  undertaking.  The  analogies  of  carriers  of  freight 
have  nothing  to  do  with  passenger  carriers.  These  are  liable  only 
when  there  has  been  actual  negligence  of  themselves  or  their  ser- 
vants. If  they  exercise  tlieir  functions  in  the  same  way  with  pru- 
dent railway  companies  generally,  and  furnish  tlu'ir  road  and  run  it 
in  the  customary  manner  which  is  generally  found  and  believed  to 
be  safe  and  prudent,  they  do  all  that  is  incumbent  upon  them.  M. 
C.  K.  R.  V.  Coleman,  28  Mich.  440;  G.  R.  &  I.  R.  R.  v.  Judson, 
34  Mich.  50G;  Ft.  Wayne,  J.  &  S.  R.  R.  v.  Gildersleeve,  33  I^Iich. 
133;  M.  C.  R.  R.  V.  Dolan,  32  Mich.  510.  This  general  doctrine 
tlje  court  below  laid  down  very  clearly,  but  qualified  it  so  as  to 
make  them  absolutely  responsible  for  the  omissions  or  lack  of  skill 

■  tion  of  the  manufacturers  from  whom  they  nia<l(;  their  ])ur- 

■  1   stock,  ]io\V(!V(;r  liigh  in  standing  and  rei)utati()n  as  reliable 

pJTHOnS. 

There  is  no  principle  of  law  which  ])laces  sucli  manufac'iurers  in 

thf  position  of  agents  or  servants  of  their  customers.     The  law  does 

! •■n» plate  that  railroad  coinjianies  will   in  general  make  their 

.  .  or  engines,  and  they  purchase  them  in  the  market,  of  per- 


LIABILITY   FOR    INJURIES.  583 

sons  supposed  to  be  competent  dealers,  just  as  they  buy  their  other 
articles.  All  that  they  can  reasonably  be  expected  to  do  is  to  pur- 
chase such  cars  and  other  necessaries  as  they  have  reason  to  believe 
will  be  safe  and  proper,  giving  them  such  inspection  as  is  usual  and 
practicable  as  they  buy  them.  When  they  make  such  an  examina- 
tion, and  discover  no  defects,  they  do  all  that  is  practicable,  and  it 
is  no  neglect  to  omit  attempting  what  is  impracticable.  They  have 
a  right  to  assume  that  a  dealer  of  good  repute  has  also  used  such 
care  as  was  incumbent  on  him,  and  that  the  articles  purchased  of 
him  which  seem  right  are  right  in  fact.  Any  other  rule  would  make 
them  liable  for  what  is  not  negligence,  and  put  them  practically  on 
the  footing  of  insurers.  The  law  has  never  attempted  to  hold  pas- 
senger carriers  for  anything  which  they  could  not  avoid  by  their  own 
diligence. 

The  case  of  Eichardson  v.  Great  Eastern  Eailway  Co.,  L.  E,.  1  C. 
P.  Div.  342,  Court  of  Appeals,  is  quite  in  point  and  establishes  the 
doctrine  as  it  has  been  fixed  by  the  general  understanding  since  the 
carrying  of  passengers  has  been  the  subject  of  legal  discussion. 
That  was  a  passenger  case,  depending  on  the  doctrine  of  negligence 
as  applied  to  defective  trucks.  The  axle  of  a  truck  belonging  to 
another  company,  brought  on  the  line  of  the  respondents  to  be  for- 
warded, was  broken  by  reason  of  a  flaw  which  might  have  been  dis- 
covered by  a  minute  examination,  but  which  was  not  discovered,  in 
fact,  by  such  an  examination  as  was  customary  and  reasonably  prac- 
ticable. It  was  held  no  negligence  could  be  imputed  for  not  making 
a  more  minute  examination  than  was  made.  In  that  ease  the  court 
also  held  that  it  was  not  within  the  province  of  a  jury  to  lay  down 
rules  after  their  own  opinion,  which  imposed  duties  beyond  the 
usual  practice  of  prudent  railways.  See  also  Daniel  v.  Metropolitan 
Eailway  Co.,  L.  E.  5  H.  of  L.  45,  upon  the  right  of  a  railway  com- 
pany to  assume  there  is  no  negligence  in  others  over  whom  they 
exercise  no  control. 

The  injustice  and  illegality  of  holding  passenger  carriers  to  any- 
thing like  a  warranty  of  their  carriages  was  very  fully  discussed  and 
asserted  in  Eeadhead  v.  Midland  Ey.  Co.,  L.  E.  4  Q.  B.  379.  Tlie 
New  York  cases  which  were  relied  on  upon  the  argument  of  the 
present  cause  were  considered  in  the  light  of  a  large  number  'of 
decisions,  and  disapproved,  as  we  think,  correctly.  They  entirely 
ignore  the  true  ground  of  responsibility  as  depending  on  the  actual 
negligence  of  the  carrier.  There  is  no  such  thing  as  implied  negli- 
gence, when  there  is  none,  in  fact. 

We  think  the  judgment  erroneous,  and  it  must  be  reversed  with 
costs  and  a  new  trial  be  granted. 


584  CARRIERS  OF  PASSENGERS. 


PERSHIXG  V.   CHICAGO,    etc.,   E.   CO. 
71  Iowa,  561.     1SS7. 

Ok  the  eighth  day  of  February,  1885,  a  passenger  train  on  defend- 
ant's railway  was  derailed,  as  is  supposed,  by  a  broken  rail,  at  a 
point  near  a  bridge  over  a  gully  or  ravine.  When  the  train  went 
upon  the  bridge,  the  wheels  on  one  side  passed  outside  of  the  guard- 
rail, and  the  bridge  was  broken  down,  and  the  car  in  which  the 
plaintiff's  intestate  was  riding  as  a  passenger  was  thrown  into  the 
gully  or  ravine,  and  she  received  injuries  which  caused  her  death. 
This  action  was  brought  for  the  recovery  of  the  damages  sustained 
by  her  estate.  There  was  a  verdict  and  judgment  for  defendant, 
and  plaintiff  appeals. 

Rekd,  J.  It  is  alleged  in  the  petition  that  the  injury  was  caused 
by  the  negligence  of  the  defendant,  and  that  its  negligence  con- 
sisted (1)  in  the  manner  in  which  its  track  and  bridge  were  con- 
structed and  maintained,  the  latter  being  insufficient;  and  (2)  in  the 
manner  in  which  the  train  was  being  run  at  the  time  of  the  acci- 
dent. The  evidence  is  not  contained  in  the  abstract,  but  it  is  recited 
in  the  "  bill  of  exceptions  "  that  plaintiff  introduced  evidence  tending 
to  prove  the  occurrence  of  the  accident  and  injury,  and  that  the 
deceased  was  not  guilty  of  any  contributory  negligence,  and  that 
the  accident  was  caused  by  the  negligent  manner  in  which  the  track 
and  bridge  were  constructed  and  maintained,  and  the  negligent 
manner  in  which  the  train  was  being  run  at  the  time,  and  by  the 
insufficiency  of  the  bridge,  and  that  he  then  rested  his  cause;  that 
tlie  defendant  thereupon  introduced  evidence  tending  to  prove  that 
its  road,  and  said  bridge,  and  its  rolling  stock,  and  its  servants 
and  agents,  were  in  all  respects  such  as  were  accepted  by,  and  were 
in  general  use,  and  found  to  be  sufficient  and  approved  by  the  best 
an«l  most  skilfully  managed  railroads  of  the  country,  doing  a  like 
business  undt-r  like  circumstances  with  it;  and  the  selection  of  its 
materials,  and  the  plan  and  construction  of  its  roadway,  track, 
bridges,  and  rolling  stock,  and  the  selection  of  its  employees,  ser- 
vants, and  agents,  and  the  inspection  and  repairs  of  its  road  and 
marliinery,  and  appliances  connected  with  the  operation  of  the 
ro.id,  were  siuth  as  tlie  Ijcst,  most  carefully,  prudently,  and  skilfully 
managed  railroads  in  tlie  country  exercise  and  require,  doing  a  like 
business,  and  under  like  circumstances;  and  that  the  bridge  went 
down,  and  that  the  car  in  whicli  the  intestate  was  riding  was  thrown 
r:ivinf»,  l)y  reason  of  the  derailment  of  the  train,  at  a  jjoint 
:rom  the  bridge;  that  tlie  ties,  rails,  and  fastenings,  and  the 
itailast  thereunder  at  that  ])oint.  and  bt-twi-cn  tluTC  and  ilie  bridge, 


LIABILITY   FOE   INJURIES.  585 

were  in  all  respects  such  as  had  been  found  sufficient  by  the  most 
skilfully  and  prudently  managed  railroads  of  the  country,  doing  a 
like  business,  under  similar  circumstances;  that  the  same  were  from 
time  to  time,  and  as  frequently  as  by  other  railroads,  inspected  in 
the  usual  way  of  inspecting  such  appliances  by  the  most  carefully 
and  prudently  managed  railroads  of  the  country,  by  an  employee  of 
competent  skill  and  experience  in  such  matters;  and  that  the  rails 
and  joint  fastenings  appeared  sound,  and  all  their  supports  sound 
and  secure;  and  that  there  were  no  flaws  or  defects  visible  that 
could  have  been  discovered  by  such  inspection;  and  that  the  shock 
or  blow  which  caused  the  bridge  to  fall  was  of  unusual  and  extraor- 
dinary violence,  and  that  the  bridge  would  not  otherwise  have  gone 
down,  and  that  the  guard-rails  on  the  bridge  were  such  as  were 
usually  and  customarily  used  by  the  most  skilfully  managed  rail- 
roads of  the  country,  under  like  circumstances. 

In  rebuttal,  plaintiff  introduced  evidence  tending  to  prove  that 
the  bridge  was  not  sufficient,  either  in  plan  or  construction ;  that  the 
guard-rails  were  not  of  sufficient  size,  and  were  not  properly  placed 
or  fastened;  that  the  joint  fastenings  at  the  point  at  which  the 
derailment  occurred  were  insufficient,  and  were  broken  prior  to  the 
occurrence  of  the  derailment;  and  that  the  break  might  have  been 
discovered,  by  a  careful  and  proper  inspection,  before  the  passage  of 
the  train. 

The  errors  assigned  all  relate  to  the  instructions  given  by  the  court 
to  the  jury. 

I.  In  the  seventh,  eighth,  and  thirteenth  instructions,  the  jury 
were  told,  in  effect,  that  the  burden  was  on  plaintiff  to  show  that 
the  injury  was  caused  by  the  negligence  of  the  defendant;  but  that, 
if  he  had  established  that  the  accident  was  attended  by  circum- 
stances showing  that  it  was  caused  by  the  defective  construction  of 
the  roadway,  bridge,  track,  or  the  fastenings  of  the  rail  at  the  point 
where  the  derailment  occurred,  or  its  train  or  cars,  or  by  the  man- 
agement or  running  of  the  train,  this  would  raise  a  presumption  of 
negligence,  and  would  cast  upon  defendant  the  burden  of  proving 
that  it  was  not  caused  by  any  negligence  or  want  of  skill  on  its  part, 
either  in  the  construction  or  maintenance  of  its  roadway,  track,  or 
bridge,  or  in  the  management  of  the  train,  or  the  condition  of  the 
cars,  but  that  this  presumption  extended  only  to  those  portions  of 
the  track,  machinery,  or  bridge  which  the  circumstances  of  the  acci- 
dent indicated  were  possibly  defective,  and  it  was  not  required  to 
prove  that  nothing  about  its  entire  train  and  roadway  were  defec- 
tive ;  and  that  the  burden  cast  upon  it  by  proof  of  the  happening  of 
the  accident,  and  the  attending  circumstances,  only  required  it  to 
show  that,  as  to  the  matters  which  the  circumstances  indicated 
were  the  cause  of  the  accident  and  injury,  it  had  exercised  due  care; 
and  that  it  was  not  required  to  satisfactorily  explain  the  reason  of 
the  breaking  of  the  rail,  and  the  derailment  of  the  train,  and  the 


586  CARRIERS    OF   PASSENGERS. 

breaking  down  of  the  bridge,  Imt  was  only  required  to  prove  that 
these  things  did  not  occur  through  any  negligence  on  its  iiait. 

The  point  urged  by  counsel  for  appellant  is  that  the  instructions 
are  erroneous,  in  that  they  limit  the  burden  imposed  upon  defendant 
bv  the  evidence  of  the  occurrence  of  the  accident,  and  the  attendant 
circumstances,  to  proof  merely  that  it  had  not  been  negligent  in 
resi>ect  to  those  matters  which  the  circumstances  indicated  were  the 
cause  of  the  injury.  Their  position  is  that  the  presumption  which 
arises  upon  proof  of  the  happening  of  the  accident  is  not  a  mere 
presumption  of  negligence  as  to  some  specific  matter,  but  is  a  pre- 
sumption of  general  negligence  on  the  part  of  the  carrier;  or,  in 
other  words,  they  insist  that  the  presumption  is  that  he  is  legally 
liable  for  the  injury,  and  that  this  presumption  can  be  overcome 
only  by  proof  that  it  was  caused  by  inevitable  accident,  and  that  it 
follows  necessarily  from  this  that  he  must  account  for  the  accident, 
and  show  that  he  was  free  from  all  negligence  in  the  matter. 

The  rule  which  casts  the  burden  of  proof  on  the  carrier  is  a  rule 
of  evidence  having  its  foundation  in  considerations  of  policy.  It 
prescribes  the  quantum  of  proof  which  the  passenger  is  required  to 
produce  in  making  out  his  case  originally,  and  he  is  entitled  to 
recover  on  tliat  jn-oof,  unless  the  carrier  can  overcome  the  presump- 
tion which  arises  under  the  rule  from  the  facts  proven.  Caldwell  v. 
Steamboat  Co.,  47  N.  Y.  282;  Thomp.  Carr.  200. 

The  rule  undoubtedly  requires  the  carrier  to  prove  his  own  free» 
dom  from  negligence  as  to  the  cause  of  the  injury.  lUit  that,  it 
appears  to  us,  is  the  doctrine  of  the  instructions.  The  immediate 
cause  of  the  injury  to  plaintiff's  intestate  was  the  breaking  down 
of  the  bridge,  and  the  consequent  precipitation  of  the  car  into  the 
ravine;  and  this  was  occasioned  by  the  blow  or  concussion  by  the 
derailed  train.  In  seeking  for  the  cause  of  the  injury,  then,  it 
became  necessary  to  inquire  as  to  the  cause  of  the  derailment  of  the 
train,  and  whetlier  tliere  was  any  defect  in  the  track,  or  roadway, 
or  bridge,  or  in  the  cars  or  machinery  of  the  train,  or  any  negligence 
in  the  management  of  it  at  the  time;   for  the  circumstances  indi- 

■    1  unmistakably  that  tlie  cause  of  the  accident  was  to  be  found  in 

1  •  of  thest!  matters.     They  constituted  the  subject  of  the  inquiry 

as  to  this  brancli  of  the  case,  and  defendant  very  properly  confined 

its  proof  as  to  the  diligence  and  care  it  had  exercised,  to  that  sul)ject. 

As  there  was  nothing  to  indicate  that  any  other  matter  could  have 

'•"iitributed  to  tlie  accident,  it  could  not  be  rerpiired  to  sliow  that  it 

li.id  been  careful  as  to  fttlier  matters.     Such  evidence  would  clearly 

h;ive  been  imm.iterial,  and  the  holding  of  the  instructions  is  that  it 

■■     ■  not  rcfpiired  to  go  beyond  the  cause  of  the  inquiry  in  making 

f  of  oar''  and  diligence.     Tlie  holding  that  it  was  not,  r('(|iiired 

fartory  explanation  of  the  cause  of  the  breaking  of  the 

„'e  is  supported  by  Tuttle  v.  Chicago,  R.  1.  ct  1*.  Jl'y  Co., 

4JJ  Iowa,  236. 


LIABILITY   FOR   INJURIES.  587 

II.  The  following  instructions  were  given  by  the  Circuit  Court: 
"It  is  a  duty  of  a  railway  company,  employed  in  transporting  pas- 
sengers, to  do  all  that  human  care,  vigilance,  and  foresight  can  reas- 
onahhj  do,  consistent  with  the  mode  of  conveyance  and  the  practical 
operation  of  the  road,  in  providing  safe  coaches,  machinery,  tracks, 
rails,  angle-bars,  or  splices,  bridges  and  roadway,  and  in  the  con- 
duct and  management  of  its  trains  for  the  safety  of  its  passengers, 
and  to  keep  the  same  in  good  repair.  The  utmost  degree  of  care 
which  the  human  mind  is  capable  of  inventing  or  producing,  is  not 
required;  but  the  highest  degree  of  care,  vigilance,  and  foresight  that 
is  reasonably  practicable  in  the  conduct  and  management  of  its  road 
and  business  is  required.  .  .  .  Common  carriers  of  passengers  are 
held  to  the  very  highest  degree  of  care  and  prudence  that  human 
care,  vigilance,  and  foresight  could  reasonably  do,  which  is  consistent 
with  the  practical  operation  of  their  road,  and  the  transaction  of 
their  business;  yet  they  are  not  absolute  insurers  of  the  safety  of 
their  passengers;  and  if  you  find  that  the  defendant  exercised  all 
reasonably  practical  care,  diligence,  and  skill  in  the  construction, 
preservation,  inspection,  and  repairs  of  its  road-bed,  bridges,  track, 
rails,  angle-bars,  or  splices,  in  the  management  and  operation  of  its 
road,  and  of  the  train,  at  the  time  of  the  accident  alleged  and  shown 
to  have  occurred,  and  that  the  accident  could  not  have  been  pre- 
vented by  the  use  of  the  utmost  practical  care,  diligence,  and  skill 
consistent  with  the  practical  operation  of  its  road,  and  the  transac- 
tion of  its  business,  then  plaintiff  cannot  recover  in  this  action." 

The  rule  which  has  been  uniformly  recognized  and  enforced  in 
this  State,  is  that  the  carrier,  in  the  conduct  and  management  of  his 
business,  and  as  to  all  the  appliances  made  use  of  in  the  business,  is 
bound  to  exercise  the  highest  degree  of  care  and  diligence  for  the 
convenience  and  safety  of  his  passengers,  and  he  is  held  liable  for 
the  slightest  neglect.  Frink  v.  Coe,  4  G.  Greene,  555;  Sales  v. 
Western  Stage  Co.,  4  Iowa,  574;  Bonce  v.  Dubuque  St.  R'y  Co.,  53 
id.  278;  Kellow  v.  Central  Iowa  R'y  Co.,  68  id.  470.  It  is  insisted 
that  the  instructions  are  in  conflict  with  this  rule.  The  position  of 
counsel  is  that,  by  the  use  of  the  words  r-easonalJe,  reasonably  jjrac- 
ticable,  and  reasonably  practical  in  the  instructions,  the  care  for  the 
safety  of  the  passenger  required  of  the  carrier  is  lowered,  and  he  is 
required  to  exercise  reasonable  or  ordinary  care  only.  It  will  be 
observed,  however,  that  these  words,  as  they  are  used  in  the 
instructions,  while  they  to  some  extent  limit  the  degree  of  care 
required  of  the  carrier,  have  special  reference  to  the  practical  opera- 
tion of  the  railroad,  and  the  conduct  of  the  business.  When  the 
instructions  are  scrutinized,  it  will  be  found  that  the  doctrine 
announced  by  them  is  that  defendant  was  bound  to  exercise  the 
highest  degree  of  care  and  diligence  which  was  reasonably  consistent 
with  the  practical  operation  of  its  railroad,  and  the  conducting  of 
its  business ;  and  this  is  right.     It  is  doubtless  true  that  precautions 


58S  CARRIERS   OF   PASSENGERS. 

could  be  used  in  the  construction  and  operation  of  railroads  that 
would  prevent  many  of  the  accidents  which  occur  as  they  are  con- 
structed and  operated.  It  sometimes  happens  that  a  derailed  train 
is  precipitated  from  a  high  embankment,  and  the  lives  of  its  passen- 
gers endangered  or  destroyed.  Accidents  of  that  character  could  be 
avoided  by  constructing  all  railroad  embankments  of  such  a  -width 
that  a  derailed  train  or  car  would  come  to  a  stop  before  reaching  the 
declivity.  But  this  would  add  immensely  to  the  cost  of  construct- 
ing such  improvements,  and,  if  required,  would  in  many  cases  pre- 
vent their  construction  entirely.  If  passenger  trains  were  run  at 
the  rate  of  ten  miles  per  hour,  instead  of  from  twenty-five  to  forty 
miles,  it  is  probable  that  all  danger  of  derailment  would  be  avoided. 
But  railroad  companies  could  not  reasonably  be  required  to  adopt 
tliat  rate  of  speed.  Their  roads  are  constructed  with  a  view  to  rapid 
transit,  and  the  travelling  public  would  not  tolerate  the  running  of 
trains  at  that  low  speed.  When  it  is  said  that  they  are  held  to  the 
highest  degree  of  care  and  diligence  for  the  safety  of  their  passen- 
gers, it  is  not  meant  that  they  are  required  to  use  every  possible 
precaution;  for  that,  in  many  instances,  would  defeat  the  very  ob- 
jects of  their  employment.  There  are  certain  dangers  that  are 
necessarily  incident  to  that  mode  of  travel,  and  these  the  passenger 
assumes  when  he  elects  to  adopt  it.  But  all  that  is  meant  is  that 
they  should  use  the  highest  degree  of  care  that  is  reasonably  con- 
sistent with  the  practical  conduct  of  the  business,  and  that  is  the 
doctrine  of  the  instructions,  and  it  is  abundantly  sustained  by  the 
authorities.  Indianapolis  &  St.  L.  R'y  Co.  v.  Horst,  93  U.  S.  291; 
Dunn  V.  Grand  Trunk  R.  R.,  58  ]\[e.  187;  Hegeman  v.  Western 
R.  R.,  13  N.  Y.  9;  Kansas  Pacific  R.  R.  v.  Miller,  2  Colo.  442; 
Wood,  R.  R.  1049-1054. 

III.  The  eleventh,  twelfth,  and  fourteenth  instructions  given  by 
tlie  court  are  as  follows:  — 

"The  degree  of  care  required  of  defendant  in  the  selection  of  its 
materials,  the  plan  and  construction  of  its  roadway,  track,  bridges, 
and  rolling  stock,  in  tlie  sidection  of  its  employees,  servants,  and 
agents,  and  in  the  inspection  and  repairs  of  its  road,  and  the 
machinery  and  appliances  connected  with  the  operation  of  the  same, 
is  such  as  the  best,  most  carefully,  prudently,  and  skilfully  managed 
railroads  of  the  country  exercise  and  require,  doing  a  like  business, 
and  un»l('r  like  circumstances. 

"The  high  degree  of  care  hereinbefore  referred  to,  and  required  of 
defondant,  embraces  its  roadway,  track,  bridges,  and  rolling  stock, 
and  the  selection  of  its  employees,  servants,  and  agents.  In  supply- 
in*.^'  mat^Tials  for  and  in  constructing  its  roadwa}',  track,  bridges,  and 
rolling  stock,  it  was  required  to  exercise  that  high  degree  of  care  to 
see  that  materials  used  were  amply  sufficient,  and  of  such  quality, 
sizn,  pattern,  as  were  accepted  by  and  in  general  nso,  <ni<l  found  to 
he  aiiffiriint,  and  ujtproi'i-d  by  the  best  and  most  skilfully  maiuiged 


LIABILITY    FOR   INJURIES.  589 

railroads  of  the  country,  doing  a  like  business  with  defendant.  In 
the  selection  of  train-men,  and  in  the  management  of  its  train,  it 
was  bound  to  exercise  that  high  degree  of  care,  and  to  provide  men 
of  sufficient  experience,  skill,  and  prudence  to  run  such  train  safely, 
as  far  as  was  practicable;  and  it  was  bound,  also,  in  like  manner,  to 
see  that,  in  the  actual  management  of  the  train  at  the  time  of  the 
accident,  the  train-men  exercised  a  like  degree  of  care  and  skill 
in  managing  and  running  the  train  safely  in  all  respects,  so  as  to 
avoid  injury  to  the  passengers.  If  defendant  failed  in  any  of  these 
respects,  and  such  failure  was  the  cause  of  the  injury  complained 
of,  it  was  negligent,  and  is  liable. 

"If  you  find  that  the  rails  which  were  broken  were  made  by  a 
manufacturer  of  good  repute,  were  made  upon  the  approved  method 
of  manufacturing  rails,  were  properly  tested  by  the  proper  known 
and  usually  applied  tests  then  in  practical  use,  and  had  been  on  the 
track  for  several  years,  and  had  successfully  stood  the  strain  of 
numerous  passing  trains  without  in  any  manner  affecting  their 
quality  or  strength,  so  far  as  could  be  seen  by  proper  examination, 
carefully  and  skilfully  made ;  if,  at  the  time  of  the  accident,  they 
were  placed  and  lying  securely  on  sound  ties,  with  good  angle-bars 
or  splices  at  the  ends,  with  sufficient  ballast  under  the  ties,  with  all 
their  connections  and  supports  well  adjusted ;  if  they  had  been  sub- 
jected to  a  daily  inspection  in  the  most  approved  and  customary  way 
of  inspecting  such  appliances  by  the  most  careful  and  best  managed 
railroads  in  the  country,  by  some  servant  of  competent  skill  and 
experience  in  such  matters,  and  said  rails  appeared  then  sound,  and 
all  these  connections  and  supports  sound  and  secure;  then  if  there 
were  no  flaws  or  defects  visible,  or  that  could  have  been  discovered 
by  such  approved  and  customary  inspection,  made  in  the  manner 
hereinbefore  explained,  —  then  the  defendant  was  not  negligent  with 
reference  to  said  rails." 

Some  of  the  members  of  the  court  think  that  the  eleventh  instruc- 
tion is  erroneous,  but  we  unite  in  the  conclusion  that,  if  it  should 
be  conceded  to  be  erroneous,  the  plaintiff  could  not  have  been  preju- 
diced by  it.  The  doctrine  of  the  instruction  is  that  the  degree  of 
care  required  of  defendant  in  the  selection  of  plans  and  materials  for 
its  roadways,  bridges,  and  appliances  was  such  as  was  exercised  by 
the  best  and  most  skilfully  and  carefully  managed  railroads  in  the 
country,  under  like  circumstances.  The  objection  urged  against  it 
is  that  it  treats  the  practices  of  the  class  of  railroads  named,  in  the 
matters  in  question,  as  affording  an  absolute  standard  of  duty  as  to 
those  matters,  thus,  in  effect,  making  the  very  practices  which  are 
called  in  question  the  law  of  the  case.  We  admit  the  force  of  the 
objection.  But  the  twelfth  instruction  was  drawn  with  special  refer- 
ence to  the  facts  of  the  case,  and  in  it  the  jury  were  told,  in  effect, 
that  defendant  was  bound,  not  only  to  select  such  plans  and  material 
for  the  construction  of  its  road  and  appliances  as  were  in  use  by  the 


590  CARRIERS   OF   PASSENGERS. 

best  and  most  skilfully  conducted  roads  of  the  country,  but  that 
such  materials  and  plans  must  have  been  found  sufficient  by  the 
other  roads.  This  is  clearly  right.  When  a  plan  of  construction, 
and  the  materials  made  use  of,  have  been  found  by  actual  experience 
to  be  sufficient  and  safe,  other  roads,  whose  business  is  to  be  carried 
on  under  like  circumstances,  are  warranted  in  adopting  them.  To 
hold  otherwise  would  be  to  hold  that  railroad  companies,  in  the 
construction  and  operation  of  their  roads,  could  not  avail  themselves 
of  the  experience  of  others,  and  that  the  construction  and  operation 
of  every  road  must,  to  a  great  extent,  be  a  matter  of  experiment. 
With  this  rule  distinctly  laid  down  as  applicable  to  the  facts  of 
the  case,  we  think  the  jury  could  not  have  been  misled  by  the 
eleventh  instruction,  conceding  that  it  is  erroneous.  This  conces- 
sion, however,  must  be  understood  as  being  made  only  for  the  pur- 
pose of  the  argument,  for  a  majority  of  the  court  are  of  the  opinion 
that  the  instruction  is  not  erroneous.  We  think,  also,  that  the  four- 
teenth instruction  is  correct. 

IV.  In  another  instruction  the  jury  were  told  that  defendant 
"  was  not  required  to  so  construct  its  bridge  that  it  would  resist  an 
unusual  and  extraordinary  shock  of  a  derailed  train,  running  at  reg- 
ular speed,  and  striking  it  with  great  force."  After  the  jury  had 
been  considering  the  case  for  some  time,  they  were  again  brought 
into  court,  and  the  court  gave  them  further  instructions  on  that  sub- 
ject, which  very  materially  modified  the  one  quoted  above.  In  the 
additional  instructions  they  were  told,  in  effect,  that  the  defendant 
was  required  to  take  into  account,  in  constructing  and  maintaining 
its  bridges,  the  fact  that  accidents  might  occur  in  the  operation  of 
its  road,  and  to  construct  its  bridges  with  reference  thereto;  and 
that  it  was  held  to  a  very  higli  degree  of  care  in  that  respect.  As 
tlius  modified,  the  instruction  quoted  affords  plaintiff  no  just  ground 
of  complaint. 

We  have  found  no  ground  in  the  record  upon  wliicli  we  think  we 
ought  to  disturb  the  judgment,  and  it  will  be 

Affirmed. 


GLEESON    V.    VIRGINIA   MIDLAND   K.    CO. 
1 10  U.  S.  435.     1891. 

In  error  to  the  Supreme  Court  of  tlie  District  of  Co]uiiil)i;i. 

This  is  an  action  for  damages,  brought  in  tlie  Supreme  Court  of 

the  Di.strict  of  Columbia.     It  appears  from  tlio  bill  of  exceptions 

that  at  the  trial  the  evidence  introduced  by  the  jjlaintiff  tended  to 

V    V  that  in  January,  1S82,  ho  was  a  railway  jjostal-clerk,  in  the 

;    .  e  of  the  United  States  post-office  department;  tliat  on  Sunday, 


LIABILITY    FOR    INJURIES.  591 

the  15th  of  that  month,  in  the  discharge  of  his  official  duty,  he  was 
making  the  run  from  Washington  to  Danville,  Va.,  in  a  postal-car 
of  the  defendant,  and  over  its  road;  that  in  the  course  of  such  run 
the  train  was  in  part  derailed  by  a  landslide  which  occurred  in  a 
railway  cut,  and  the  postal-car  in  which  the  plaintiff  was  at  work 
was  thrown  from  the  track  upon  the  tender,  killing  the  engineer  and 
seriously  injuring  the  fireman;  and  that  the  plaintiff,  while  thus 
engaged  in  performing  his  duty,  was  thrown  violently  forward  by 
the  force  of  the  collision,  striking  against  a  stove  and  a  letter-box, 
three  of  his  ribs  being  broken,  and  his  head,  on  the  left  side,  con- 
tused, which  injuries  are  claimed  to  have  permanently  impaired  his 
physical  strength,  weakened  his  mind,  and  led  to  his  dismissal  from 
his  office,  because  of  his  inability  to  discharge  its  duties.  Defence 
was  made  by  the  company  under  these  propositions :  That  the  land- 
slide was  caused  by  a  rain  which  had  fallen  a  few  hours  previous, 
and  therefore  was  the  act  of  God;  that  it  was  a  sudden  slide,  caused 
by  the  vibration  of  the  train  itself,  and  which,  therefore,  the  com- 
pany was  not  chargeable  with,  since  it  had,  two  hours  before,  ascer- 
tained that  the  track  was  clear;  and  that  the  injury  resulted  from 
the  plaintiff's  being  thrown  against  the  postal-car's  letter-box,  for 
which  the  company  was  not  responsible,  since  he  took  the  risk  inci- 
dent to  his  employment.  At  the  close  of  the  testimony,  the  court, 
having  given  to  the  jury  certain  instructions  in  accordance  with  the 
requests  of  the  plaintiff,  charged  the  jury,  at  defendant's  request, 
as  follows:  "(1)  The  burden  of  proof  is  on  the  plaintiff  to  show 
that  the  defendant  was  negligent,  and  that  its  negligence  caused  the 
injury.  (2)  The  jury  are  instructed  that  the  plaintiff,  when  he 
took  the  position  of  a  postal-clerk  on  the  railroad,  assumed  the  risk 
and  hazard  attached  to  the  position,  and  if,  in  the  discharge  of  his 
duties  as  such,  he  was  injured  through  the  devices  in  and  about  the 
car  in  which  he  was  riding,  properly  constructed  for  the  purpose  of 
transporting  the  mails,  the  railroad  is  not  liable  for  such  injury, 
unless  the  same  were  caused  by  the  negligent  conduct  of  the  com- 
pany or  its  employees.  (3)  The  court  instructs  the  jury  that,  while 
a  large  degree  of  caution  is  exacted  generally  from  railway  companies 
in  order  to  avert  accidents,  the  caution  applies  only  to  those  acci- 
dents which  could  be  prevented  or  averted  by  human  care  and  fore- 
sight, and  not  to  accidents  occurring  solely  from  the  act  of  God.  If 
they  believe  that  the  track  and  instruments  of  the  defendant  were  in 
good  order,  its  officers  sufficient  in  number  and  competent,  and  that 
the  accident  did  not  result  from  any  deficiency  in  any  of  these 
requirements,  but  from  a  slide  of  earth  caused  by  recent  rains,  and 
that  the  agents  and  servants  of  the  company  had  good  reason  to 
believe  that  there  was  no  such  obstruction  in  its  track,  and  that  they 
could  not,  by  exercise  of  great  care  and  diligence,  have  discovered 
it  in  time  to  avert  the  accident,  then  they  should  find  for  the  defend- 
ant.    (4)     If  the  jury  believe  from  the  evidence  that  the  defendant's 


592  CARRIERS    OF   PASSENGERS. 

instrumenrs,  human  and  physical,  were  suitable  and  qualified  for 
the  business  in  which  it  was  engaged;  that  the  accident  complained 
of  was  caused  by  the  shaking  down  of  earth  which  had  been  loosened 
by  the  recent  rains,  and  that  the  earth  was  shaken  down  by  the 
passing  of  this  train,  — then  the  accident  was  not  such  an  act  of 
negligence  for  which  the  defendant  would  be  responsible,  and  the 
jury  should  find  for  the  defendant."  The  counsel  for  the  plaintiff 
objected  to  the  granting  of  the  first  of  these  prayers,  and  asked  the 
court  to  modify  it  by  adding  the  words  "but  that  the  injury  to  the 
plaintiff  upon  the  car  of  the  defendant,  if  the  plaintiff  was  in  the 
exercise  of  ordinary  care,  is  ^/r/»ta  facie  evidence  of  the  company's 
liability."  But  the  court  refused  to  modify  the  said  prayer,  and 
the  plaintiff  duly  and  severally  excepted  to  the  granting  of  each  one 
of  said  prayers  on  behalf  of  the  defendant,  and  to  the  refusal  of  the 
court  to  modify  the  said  first  prayer  as  requested.  The  jury,  so 
instructed,  found  for  the  defendant,  and  judgment  was  rendered 
accordingly.  That  judgment  having  been  affirmed  by  the  court  in 
general  term,  5  ]\rackey,  356,  this  writ  of  error  was  taken. 

Lamar,  J.     It  will  be  most  convenient  in  the  decision  of  this  case 
to  consider  the  third  instruction  first.     The  objections  made  to  it 
are  three :  (1)     "  It  assumes  that  the  accident  was  caused  by  an  act 
of  God,  in  the  sense  in  which  that  term  is  technically  used."     It 
appears  that  the  accident  was  caused  by  a  land-slide,  which  occurred 
in  a  cut  some  15  or  20  feet  deep.     The  defendant  gave  evidence 
tending  to  prove  that  rain  had  fallen  on  the  afternoon  of  Friday  and 
on  the  Saturday  morning  previous;  and  the  claim  is  that  the  slide 
was  produced  by  the  loosening  of  the  earth  by  the  rain.     We  do  not 
think   such  an  ordinary  occurrence   is  embraced   by  the  technical 
phrase  "an  act  of  God."     There  was  no  evidence  that  the  rain  was 
of  extraordinary  character,  or  that  any  extraordinary   results  fol- 
lowed it.     It  was  a  common,  natural  event;  such  as  not  only  might 
have  been  foreseen  as  probable,  but  also  must  have  been  foreknown 
as  certain  to  come.     Against  such  an  event  it  was  the  duty  of  the 
company  to  have  guarded.     Extraordinary  floods,  storms  of  unusual 
violence,  sudden  tempests,  severe  frosts,  great  droughts,  lightnings, 
earthquakes,  sudden  deaths  and  illnesses,  have  been  held  to  be  "  acts 
of  God; "  but  we  know  of  no  instance  in  which  a  rain  of  not  unusual 
vicdence,  and  the  probable  results  thereof  in  softening  the  superficial 
earth,  have  been  so  considered.     In  Dorman  v,  Ames,  12  Minn.  451, 
Gil.  .347,  it  was  held  that  a  man  is  negligent  if  he  fail  to  take  pre- 
cautions  against  such  rises  of  high  waters  as  are  usual  and  ordinary, 
and  reasonably  to  be  anticipated  at  certain  seasons  of  the  year;  and 
we  think  the  same  principle  ajijdies  to  this  case.     Ewart  v.  Street, 
2  T.mI.-v,  157.  102;  Moffat  v.  Strong,  lo  Johns.  11;  Steamboat  Co. 
,  J I   N.  J.  Law,  G'.)7;  Kailway  Co.  v.  Braid,  1  Moore  V.  C. 
',.N,    >.)   Jol,     (2)     The   instruction   does    not   hold   the  defendant 
•' resjKHisible  for  the  condition  of  the  sides  of  the  cut  made  by  it  in 


LIABILITY   FOR   INJURIES.  593 

the  construction  of  the  road,  the  giving  way  of  which  caused  the  acci- 
dent." We  think  this  objection  is  also  well  taken.  The  railroad 
cut  is  as  much  a  part  of  the  railroad  structure  as  is  the  fill.  They 
are  both  necessary,  and  both  are  intended  for  one  result,  which  is 
the  production  of  a  level  track  over  which  the  trains  may  be  pro- 
pelled. The  cut  is  made  by  the  company  no  less  than  the  fill;  and 
the  banks  are  not  the  result  of  natural  causes,  but  of  the  direct  inter- 
vention of  the  company's  work.  If  it  be  the  duty  of  the  company 
(as  it  unquestionably  is)  in  the  erection  of  the  fills  and  the  neces- 
sary bridges  to  so  construct  them  that  they  shall  be  reasonably  safe, 
and  to  maintain  them  in  a  reasonably  safe  condition,  no  reason  can 
be  assigned  why  the  same  duty  should  not  exist  in  regard  to  the 
cuts.  Just  as  surely  as  the  laws  of  gravity  will  cause  a  heavy  train 
to  fall  through  a  defective  or  rotten  bridge  to  the  destruction  of  life, 
just  so  surely  will  those  same  laws  cause  land-slides  and  consequent 
dangerous  obstructions  to  the  track  itself  from  ill-constructed  rail- 
way cuts.  To  all  intents  and  purposes  a  railroad  track  which  runs 
through  a  cut  where  the  banks  are  so  near  and  so  steep  that  the 
usual  laws  of  gravity  will  bring  upon  the  track  the  debris  created  by 
the  common  processes  of  nature  is  overhung  by  those  banks.  Ordi- 
nary skill  would  enable  the  engineers  to  foresee  the  result,  and 
ordinary  prudence  should  lead  the  company  to  guard  against  it.  To 
hold  any  other  view  would  be  to  overbalance  the  priceless  lives  of 
the  travelling  public  by  a  mere  item  of  increased  expense  in  the  con- 
struction of  railroads ;  and,  after  all,  an  item,  in  the  great  number 
of  cases,  of  no  great  moment. 

In  a  late  case  in  the  Queen's  Bench  division,  —  Tarry  v.  Ashton, 
1  Q.  B.  Div.  314,  —  two  out  of  three  judges  declared  in  substance 
that  a  man  who,  for  his  own  benefit,  suspends  an  object,  or  permits 
it  to  be  suspended,  over  the  highway,  and  puts  the  public  safety  in 
peril  thereby,  is  under  an  absolute  duty  to  keep  it  in  such  a  state 
as  not  to  be  dangerous.  The  facts  of  the  case  were  these:  The 
defendant  became  the  lessee  and  occupier  of  a  house  from  the  front 
of  which  a  heavy  lamp  projected  several  feet  over  the  public  foot- 
pavement.  As  the  plaintiff  was  walking  along  in  November,  the 
lamp  fell  on  her,  and  injured  her.  It  appeared  that  in  the  previous 
August  the  defendant  employed  an  experienced  gas-fitter  to  put  the 
lamp  in  repair.  At  the  time  of  the  accident  a  person  employed  by 
defendant  was  blowing  the  water  out  of  the  gas-pipes  of  the  lamp, 
and  in  doing  this  a  ladder  was  raised  against  the  lamp- iron,  or 
bracket,  from  which  the  lamp  hung;  and  on  the  man  mounting  the 
ladder,  owing  to  the  wind  and  wet,  the  ladder  slipped,  and  he,  to 
save  himself,  clung  to  the  lamp-iron,  and  the  shaking  caused  the 
lamp  to  fall.  On  examination  it  was  discovered  that  the  fastening 
by  which  the  lamp  was  attached  to  the  lamp-iron  was  in  a  decayed 
state.  The  jury  found  that  there  had  been  negligence  on  the  part 
of  the  defendant  personally;  that  the  lamp  was  out  of  repair  through 

38 


594  CARRIERS  OF  PASSENGERS. 

general  decay,  but  not  to  the  knowledge  of  the  defendant;  that  the 
immediate  cause  of  the  fall  of  the  lamp  was  the  slipping  of  the 
ladder;  but  that,  if  the  lamp  had  been  in  good  repair,  the  slipping 
of  the  ladder  would  not  have  caused  the  fall.  Upon  this  it  was 
held  by  Lush  and  Quain,  JJ.,  that  the  plaintiff  was  entitled  to  a 
verdict  on  the  ground  that  if  a  person  maintains  a  lamp  projecting 
over  the  highway  for  his  own  purposes,  it  is  his  duty  to  maintain  it 
so  as  not  to  be  dangerous  to  persons  passing  by ;  and  if  it  causes 
injuries,  owing  to  a  want  of  repair,  it  is  no  answer  on  his  part  that 
he  had  employed  a  competent  man  to  repair  it.  1  Thomp.  Xeg.  34G, 
347.  The  case  of  Kearney  v.  Railroad  Co.,  L.  R.  6  Q.  B.  759,  762, 
(in  the  Exchequer  Chamber),  cited  in  the  brief  of  counsel  for  plain- 
tiff in  error,  is  directly  in  point.  In  that  case  the  plaintiff  had  been 
injured  while  walking  along  a  public  highway,  by  a  brick  which  fell 
frum  a  pier  of  the  defendant's  bridge.  A  train  had  just  passed,  and 
the  counsel  for  the  defendant  submitted  that  there  was  no  evidence 
of  negligence.  The  court  (Kelly,  Chief  Baron)  says:  "There  can  be 
no  doubt  that  it  was  the  duty  of  the  defendants,  who  had  built  this 
bridge  over  the  highway,  to  take  such  a  care  that,  where  danger  can 
be  reasonably  avoided,  the  safety  of  the  public  using  the  highway 
should  be  provided  for.  The  question,  therefore,  is  whether  there 
was  any  evidence  of  negligence  on  the  part  of  the  defendants;  and 
by  that  we  all  understand  such  an  amount  of  evidence  as  to  fairly 
and  reasonably  support  the  finding  of  the  jury.  The  lord  chief  jus- 
tice, in  his  judgment  in  the  court  below,  said  ?*es  i2)sa  loquitur,  and 
I  cannot  do  better  than  to  refer  to  that  judgment.  It  appears  with- 
out contradiction  that  a  brick  fell  out  of  a  pier  of  the  bridge  without 
any  assignable  cause  except  tlie  slight  vibration  caused  by  a  passing 
train.  This,  we  think,  is  not  only  evidence,  but  conclusive  evi- 
dence,  that  it  was  loose;  for  otherwise  so  slight  a  vibration  could 
not  have  struck  it  out  of  its  place.  .  .  .  The  bridge  had  been  built 
two  or  three  years,  and  it  was  the  duty  of  the  defendants  from  time 
to  time  to  inspect  tlie  bridge,  and  ascertain  that  tlie  brick-work  was 
in  good  order,  and  all  the  bricks  well  secured."  The  principle  of 
these  decisions  seems  to  us  to  be  applicable  to  this  case.  If  such  be 
the  law  as  to  persons  who,  for  their  own  purposes,  cause  projections 
to  overhang  the  higliway  not  constructed  by  them,  <t.  fortiori  must  it 
be  the  law  as  to  those  wlio,  for  their  own  purposes  of  profit,  under- 
take to  construct  the  highway  itself,  and  to  keep  it  serviceable  and 
safe,  yet  who  allow  it  to  be  ])ractically  overhung,  from  considerations 
of  economy  or  through  negligence.  We  tliink  the  case  of  Kailroad 
Co.  t'.  Sanger,  15  (irat.  237,  to  wliich  we  are  referred  by  counsel 
for  plaintiff  in  error,  is  strongly  illustrative  of  the  principle  in  this 
ca.sn,  to  which  it  tears  a  close  resemblance.  Some  rocks  had  been 
pil*'(l  up  alongside  of  the  track  for  the  purpose  of  ballast,  and  some 
of  them  got  ui)on  the  track,  causing  i\u'  injury.  In  rendering  its 
opinion  the  court  says:  "Combinin'::  i-i    tliomselvos  the  ownership 


LIABILITY    FOR    INJUKIES.  595 

as  well  of  the  road  as  of  the  cars  and  locomotives,  they  are  bound  to 
the  most  exact  care  and  diligence,  not  only  in  the  management  of 
the  trains  and  cars,  but  also  in  the  structure  and  care  of  the  track, 
and  all  the  subsidiary  arrangements  necessary  to  the  safety  of  the 
passengers.  And,  as  accidents  as  frequently  arise  from  obstructions 
on  the  track  as  perhaps  from  any  other  cause  whatever,  it  would 
seem  to  follow,  obviously,  that  there  is  no  one  of  the  duties  of  a 
railroad  company  more  clearly  embraced  within  its  warranty  to 
carry  their  passengers  safely,  as  far  as  human  care  and  foresight 
will  go,  than  the  duty  of  employing  the  utmost  care  and  diligence  in 
guarding  their  road  against  such  obstructions."  See,  also,  McElroy 
V.  Eailroad  Corp.,  4  Cush.  400;  Hutch.  Carr.  p.  524;  Bennett  v. 
Eailroad  Co.,  102  U.  S.  577.  This  view  of  the  obligation  of  the 
company  of  course  makes  it  immaterial  that  the  slide  was  suddenly 
caused  by  the  vibration  of  the  train  itself.  It  is  not  a  question  of 
negligence  in  failing  to  remove  the  obstruction,  but  of  negligence  in 
allowing  it  to  get  there. 

We  are  also  of  the  opinion  that  it  was  error  to  refuse  to  modify 
the  first  instruction  for  the  defendant  as  requested  by  the  plaintiff. 
Since  the  decisions  in  Stokes  v.  Saltonstall,  13  Pet.  181,  and  Eail- 
road Co.  V.  Pollard,  22  Wall.  341,  it  has  been  settled  law  in  this 
court  that  the  happening  of  an  injurious  accident  is,  in  passenger 
cases,  prima  facie  evidence  of  negligence  on  the  part  of  the  carrier, 
and  that  (the  passenger  being  himself  in  the  exercise  of  due  care) 
the  burden  then  rests  upon  the  carrier  to  show  that  its  whole  duty 
was  performed,  and  that  the  injury  was  unavoidable  by  human 
foresight.  The  rule  announced  in  those  cases  has  received  general 
acceptance,  and  was  followed  at  the  present  term  in  Coasting  Co.  v. 
Tolson,  139  U.  S.  551.  The  defendant  seeks  to  uphold  the  action 
of  the  court  in  refusing  the  modification  prayed  for,  by  distinguish- 
ing the  case  at  bar.  It  attempts  to  make  two  distinctions :  (1)  That 
the  operation  of  the  rule  is  confined  to  cases  "  where  the  accident 
results  from  any  defective  arrangement,  mismanagement,  or  miscon- 
struction of  things  over  which  the  defendant  has  immediate  control, 
and  for  the  management,  service,  and  construction  of  which  it  is 
responsible,  or  where  the  accident  results  from  any  omission  or 
commission  on  the  part  of  the  railroad  company  with  respect  to  these 
matters  entirely  under  its  control."  (2)  That  the  injury  from  an 
act  of  God  is  established  as  a  fact,  wherefore  the  presumption  of 
negligence  from  the  occurrence  of  the  accident  cannot  arise.  Neither 
of  these  attempted  distinctions  is  sound,  since,  as  has  been  shown, 
the  defect  was  in  the  construction  of  that  over  which  the  defendant 
did  have  control,  and  for  Avhich  it  was  responsible,  and  since  the 
slide  was  not  caused  by  the  act  of  God,  in  any  admissible  sense  of 
that  phrase.  Moreover,  if  these  distinctions  were  sound,  still,  as  a 
matter  of  correct  practice,  the  modification  should  have  been  made. 
The  law  is  that  the  plaintiff  must  show  negligence  in  the  defendant. 


596  CARKIERS   OF   PASSENGERS. 

This  is  done  prima  facie  by  showing,  if  the  plaintiff  be  a  passenger, 
that  the  accident  occurred.  If  that  accident  was  in  fact  the  result 
of  causes  beyond  the  defendant's  responsibility,  or  of  the  act  of 
God,  it  is  still  none  the  less  true  that  the  plaintiff  has  made  out  his 
primafacieea.se.  When  he  proves  the  occurrence  of  the  accident, 
the  defendant  must  answer  that  case  from  all  the  circumstances  of 
exculpation,  whether  disclosed  by  the  one  party  or  the  other.  They 
are  its  matters  of  defence.  And  it  is  for  the  jury  to  say,  in  the 
light  of  all  the  testimony,  and  under  the  instructions  of  the  court, 
whether  the  relation  of  cause  and  effect  did  exist,  as  claimed  by  the 
defence,  between  the  accident  and  the  alleged  exonerating  circum- 
stances. But  when  the  court  refuses  to  so  frame  the  instructions  as 
to  present  the  rule  in  respect  to  the  prima  facie  case,  and  so  refuses 
on  either  of  the  grounds  by  which  the  refusal  is  sought  to  be  sup- 
ported herein,  it  leaves  the  jury  without  instructions  to  which  they 
are  entitled  to  aid  them  in  determining  what  were  the  facts  and 
causes  of  the  accident,  and  how  far  those  facts  were  or  were  not 
within  the  control  of  the  defendant.  This  is  error.  Judgment 
reversed,  and  cause  remanded,  with  direction  to  order  a  new  trial, 
and  to  take  further  proceedings  not  inconsistent  with  this  opinion. 

Brewer,  J.,  dissented  from  the  opinion  and  judgment  in  this 
case  on  the  ground  tliat  it  is  in  contravention  of  the  long-established 
rules  as  to  what  may  be  considered  on  an  incomplete  record. 


b.  Xi'fjUrjence  or  wrong  of  servants. 

KAILROAD  CO.    v.    WALRATH. 
38  Ohio,  401.     1S82. 

Error  to  the  District  Court  of  Hamilton  County. 

Walrath  brouglit  suit  in  the  Superior  Court  of  Cincinnati  against 
the  Cleveland,  Coluinljus,  Cincinnati  &  Indianapolis  Railroad 
Company,  to  recover  damages  for  an  injury  alleged  to  have  been 
sustained  while  he  was  a  passenger  on  the  company's  road.  He  paid 
t(i  the  comjjany  his  fare  from  Cleveland  to  Cincinnati,  and  also, 
aftf-r  the  train  had  startf-n,  jiaid  for  a  berth  in  a  car  of  tlie  Woodruff 
Slrt'ping-Car  Company,  whicli  car  formed  part  of  tlio  train.  After 
riding  in  his  proper  seat  in  the  sleeping-car  an  hour  or  more,  the 
upper  berth  came  down,  striking  him,  as  lie  alleges,  on  the  liead, 
causing  injury  to  the  spinal  cord,  and  ultimately  paralysis.  This, 
,  was  witliout  fault  on  his  ])art.  and  by  reason  of  tlie  ncgli- 
:  the  railroad  company,  as  well  in  using  defective  ap]tlianccs 
as  in  the  management  of  the  same     There  was  evidence  that  the 


LIABILITY   FOR   INJURIES.  597 

berth  had  never  fallen  before  or  afterward,  and  that,  on  examination 
after  the  accident,  no  defect  could  be  discovered  in  its  construction. 

The  case  was  heard  upon  petition,  answer,  reply,  and  testimony, 
and  a  verdict  for  $6,000  was  found,  upon  which  judgment  was 
rendered.  The  judgment  was  affirmed  in  the  District  Court.  This 
petition  in  error  was  filed  by  the  railroad  company  to  reverse  the 
judgments. 

Refusing  to  charge  in  terms  that  no  presumption  of  negligence 
arose,  from  the  fact  that  an  accident  occurred  to  Walrath  while 
travelling  as  a  passenger  in  the  sleeping-car,  and  that,  if  there  was 
no  defect  in  the  road,  or  the  car,  or  the  mechanism  used,  the  burden 
to  show  negligence  of  the  railroad  company's  employees  was  on 
him,  the  court  charged  the  jury,   among  other  things,   as  follows: 

"The  burden  of  proof  is  on  the  plaintiff  to  show  that  he  was 
injured  by  the  defendant's  negligence,  either  in  not  providing  safe 
and  suitable  cars,  or  in  not  properly  inspecting  and  taking  care  of 
said  cars.  A  mere  statement  that  a  person  was  injured  while  riding 
on  a  railway,  without  any  statement  of  the  character,  manner,  or 
circumstances  of  the  injury,  does  not  raise  a  presumption  of  negli - 
gence  on  the  part  of  the  railway  company.  But  if  the  character, 
manner,  or  circumstances  of  the  injury  are  also  stated,  such  state- 
ment may  raise^  on  the  one  hand,  a  presumption  of  such  negligence, 
or,  on  the  other,  a  presumption  that  there  was  no  such  negligence. 
If  the  plaintiff  was  in  fact  injured  while  sitting  in  his  proper  place, 
by  the  falling  on  to  his  head  of  the  upper  berth,  while  said  upper 
berth  ought  to  have  remained  in  place  above,  such  fact  raises  a  pre- 
sumption in  this  case  of  negligence,  for  which  the  defendant  is 
liable.  If  you  find  that  there  was  no  defect  in  the  road,  or  in  tlie 
car,  or  the  mechanism  used,  yet,  if  upon  the  evidence  in  this  case, 
you  find  it  reasonable  to  presume  that  the  accident  happened  by  rea- 
son of  the  upper  berth  not  having  been  properly  fastened  in  place, 
or  by  reason  of  the  persons  having  charge  of  the  car  having  failed  to 
observe  that  it  had  become  loosened,  if  such  insecure  condition 
would  be  observed  by  proper  diligence,  you  have  a  right  so  to 
presume,  and  you  would  then  find  the  defendant  guilty  of  negli- 
gence. If,  on  the  other  hand,  in  such  case,  you  find  it  equally 
reasonable  to  presume  that  the  fastening  of  the  berth  was  loosened 
by  some  other  person,  not  those  in  the  employment  of  the  defendant, 
and  such  insecure  condition  would  not  be  observed  by  proper  dili- 
gence on  the  part  of  the  persons  having  charge  of  the  car,  you  have 
the  right  so  to  presume,  and  in  that  case  would  find  the  plaintiff 
failed  to  make  out  a  case  of  negligence  against  the  defendant.  .  .  . 
The  plaintiff  is  entitled  to  damages  for  injury  traceable  to  the 
defendant's  fault,  but  not  for  injury  caused  by  his  own  act." 

Exception  was  taken  to  specified  portions  of  this  charge. 

The  railroad  company  also  insisted  that  it  was  not  liable  for  the 
negligence"  of  ttie  'servants  of  the  sleeping-car   company,  but  the 


598  CARRIERS   OF   PASSENGERS. 

charge  of  the  court  was  iitlvprse  to  the  claim,  and  exceutic 

taken. 

Okev,  C.  J.  Two  questions  are  presented:  first,  as  to  the  liabil- 
itj-  of  the  railroad  company  for  injury  to  a  passenger  travelling  on 
one  of  its  trains  in  a  coach  of  a  sleeping-car  company;  secondly,  as 
to  the  presumption  arising  from  proof  of  the  injury. 

1.  In  Southern  Express  Co.  v.  Kailway  Co.,  10  Fed.  Rep.  210, 
Miller,  J.,  said  that  ''the  express  business  is  a  branch  of  the  carry- 
ing trade  that  has,  by  the  necessities  of  commerce  and  the  usages  of 
those  engaged  in  transportation,  become  known  and  recognized;" 
"that  it  is  the  duty  of  every  railroad  company  to  provide  such  con- 
veyances, by  special  cars  or  otherwise,  attached  to  their  freight  or 
passenger  trains,  as  are  required  for  the  safe  and  proper  transporta- 
tion of  this  exiiress  matter  on  their  roads;"  "that  under  these  cir- 
cumstances there  does  not  exist,  on  the  part  of  the  railroad  company, 
the  right  to  open  and  inspect  all  packages  so  carried;"  and  "that, 
when  matter  is  so  confided  to  the  charge  of  an  agent  or  messenger 
(of  the  express  company),  the  railroad  company  is  no  longer  liable 
to  all  the  obligations  of  a  common  carrier,  but  that  when  loss  or 
injury  occurs,  the  liability  depends  upon  the  exercise  of  due  care, 
skill,  and  diligence  on  the  part  of  the  railroad  company."  And  see 
Penn.  Co.  v.  Woodworth,  26  Ohio  St.  5S5. 

Counsel  for  plaintiff  in  error  argue  in  this  case  that  sleeping-cars 
have  become  recognized  as  so  far  necessary  to  the  comfort  and  con- 
venience of  passengers  by  railway,  that  railway  companies  may  be 
compelled,  in  like  manner,  to  attach  the  coaches  of  sleeping-car 
companies  to  their  trains,  where  they  have  failed  to  provide  their 
own  ears  for  such  purpose,  in  which  case  there  should  be  a  corre- 
sponding modification  of  the  liability  of  the  railroad  company,  and 
that  whether  the  arrangement  between  the  companies  be  enforced  or 
conventional,  the  railroad  company  should  not  be  liable  for  injury 
to  passengers  resulting  solely  from  negligence  of  the  agents  of  the 
sleejting-car  company. 

In  support  of  this  view,  attention  is  called  to  tlie  fact  tliat  in 
Penn.  Co.  v.  Roy,  102  U.  S.  451,  where  the  liability  of  tlie  railroad 
company  for  an  injury  received  in  a  car  of  the  Pullman  l*alace  Car 
Co.  was  asserted,  Harlan,  J.,  lays  stress  on  the  fact  that  the  rail- 
road company  had  publislied  and  circulated  cards,  wliirli  were  in 
such  form  as  to  induce  tlie  btdief  that  the  sleeping-car  was  under  the 
management  and  control  of  the  railway  company,  lint,  on  examina- 
tion of  tlie  wliole  r)pinion,  we  find  there  was  no  intention  to  jdace 
the  liability  on  sueh  narrow  ground;  and  we  have  no  hesitancy  in 
■'»at,  in  t  , 'e  of  notice  that  the  companji^wijl  nut  bjj 

r  <1-  f' i'  iMiis  in  Ihi'  slccjiing-car  or  negligence  of 

a  passenger  may.  well  assiLUje 
■  ■  ir.un  IS  uiKH  T  <>iif  ^^'tiir-ral  management.  'I'liorpe  ?•. 
,76  N.Y.  40L';  Kinsley  v.  Railroad  Co.,   12.>   M;iss. 


LIABILITY   FOR   INJURIES.  699 

54.  How  far  a  railway  company  may,  by  agreement  with  a 
sleeping-car  company,  known  to  the  passenger,  exonerate  itself  for 
liability  for  such  injuries,  is  a  question  concerning  which  we  express 
no  opinion. 

2.  As  to  the  presumption  stated  in  the  charge,  counsel  for  plain- 
tiff in  error  say  that  there  was  no  evidence  that  the  injury  resulted 
from  defect  in  the  car  or  any  part  of  it.  Hence,  the  injury  was 
occasioned  by  the  negligence  of  the  porter  in  securing  the  berth  in 
its  place,  or  by  the  interference  of  some  other  person  with  the 
fastenings  of  the  berth.  This  statement  is  probably  correct.  Now, 
in  charging  that  the  burden  was  on  Walrath  to  show  the  injury 
resulted^  from  the  negligence"~of  the"~defendant  below,  and  that  he 
could  oiTTy  recover  for  negligence  traceable  tcTthe  defendant's  fault, 
the  court  virtually  charged  that  he  was  required  to  show  that  he  was 
without  fault.  This  being  shown,  we  think  the  court  might  then 
well  say,  under  the  circumstances,  that  the  negligeu~cel)f  the  7lefend- 
ant  might  be  presumed.  We  are  aware  that  upon  this  subject  the 
authorities  are  in  some  conflict.  Roscoe's  JST.  P.  Ev.  (14th  ed.)  695; 
Thompson  on  Car.  Pas.  209;  Schouler  on  Bailments,  642;  2  Wait's 
Act  &  Def.  90;  Pierce  on  Rail.  (ed.  of  1881)  298;  Johnson  v. 
Railroad  Co.,  20  N.  Y.  65;  Readhead  v.  Midland  Railw.  Co.,  4  L. 
R.  Q.  B.  379;  Hyman  v.  Nyle,  6  Q.  B.  D.  685;  Great  West.  Railw. 
V.  Fawcett,  1  Moore  (P.  C.)  101,  116;  cf.  Czech  v.  General  Steam 
Nav.  Co.,  3  L.  R.  C.  P.  14.  But  the  general  question  was  carefully 
considered  in  Railroad  Co.  v.  Mowery,  36  Ohio  St.  418,  and  we 
think  the  principle  of  that  case  sustains  the  court  below  in  the 
charge  given  and  in  refusing  the  charge  requested.  Railroad  Co.  v. 
McMillan,  37  Ohio  St.  554,  was  an  action  for  killing  a  horse  on  the 
company's  road,  and  has  no  application.  Whether  the  sentence 
next  to  the  last,  in  the  portion  of  the  charge  set  forth  in  the  state- 
ment of  this  case,  was  not  more  favorable  to  the  railroad  company 
than  was  warranted,  we  need  not  determine. 

Judgment  affirmed. 


MARION  V.    CHICAGO,   etc.  R.   CO. 

59  Iowa,  428.     1882. 

Action  to  recover  for  a  personal  injury.  The  plaintiff  avers  in 
his  petition  that  he  climbed  upon  one  of  the  defendant's  freight 
trains  while  in  motion:  that  he  did  so  without~a  tickeFand  without 
the  consejit  of  the  company;  that  one  of  the  defendant's  brakemen, 
in^ the  cour^3ej3f^his_ejnj)loyment,  Jiegligently  jinct  wilfully  forced 
Jiim  from  the  train  while  in  motion,  and  caused  him  to  fall  through 
abridge,  from  which  he  received  the  injury  conijglaiped  of.  ' 


J 


600  CARRIERS   OF   PASSENGERS. 

The  defendant  for  answer  denied  all  the  allegations  of  the  peti- 
tion not  admitted,  and  did  not  admit  that  one  of  its  brakemeu,  in 
the  course  of  his  employment,  negligently  or  wilfully  forced  the 
plaintiff  from  the  train.  There  was  a  trial  to  a  jury,  aud  verdict 
and  judgment  were  rendered  for  the  plaintiff.  The  defendant 
appeals. 

Adams,    J.     There  was  evidence  tending  to  show  that  the  con- 
ductor was  vested  with  the  sole  power  to  determine  who  should  be 
allowed  to  ride  upon  the  train  and  who  should  be  removed  there- 
from.    Upon   this  point  the  defendant  asked  the  court  to  give  an 
instruction  in  these  words :   "  Acts  done  by  an  employee  while  en- 
gaged in  the  service  of  his  employer  are  not  necessarily  done  in  the 
course  of  his  employment  as  the  term  is  used  in  law,  and  if  an  em- 
ployee, while  engaged  in  the  service  of  his  principal  to  perform  a 
special  service,  goes  beyond  or  outside  the  scope  of  his  employment, 
and  in  doing  so  injures  one  to  whom,  like  the  plaintiff  in  this  case, 
the  employer  owes  no  duty,  the  employer  is  not  liable."     The  court 
refused  to  give  this  instruction,   and  gave  an  instruction   in  these 
words:  "Even  thougli  the  instructions    aud  rules  of   the  company 
placed  the  matter  of  the  removal  of  trespassers,  or  non-paying  pas- 
sengers, from  the  trains  under  the  immediate  charge  and  discretion 
of  the  conductor,   aud  it  was  the  duty  of  the  brakeman  to  put  off 
such  persons  only  by  the  direction  of  the  conductor  as  his  superior, 
the  defendant  is  not  relieved  from  liability  simply  because  in  this 
instance  the  brakeman  acted  without  orders  or  direction  from  the 
conductor.     But  if  the  brakeman,  not  as  a  part  of  his  duty  as  an 
employee  of  the  defendant,  but  for  the  gratification  of  his  own  feel- 
/  ings,    wilfully  or  maliciously    assaulted   the  plaintiff,  and   in  this 
assault  the  plaintiff  fell  to  the  ground,   then  the  defendant  is  not 
\  lialde.     The  point  you  are  to  observe  is  this:  that  as  the  defendant 
1  owed  the  plaintiff  no  duty  as   a  common   carrier,   therefore,  unless 
I  the  brakeman,  as  an  employee  of  the  company  enszaged  in  operating 
;   the  train,  acteTTTor  the  ])urposej;)f_|)uiy.iiig_him  off  and  freei^ 
j  train  fromTum  as  a  trespasser,  the  defendant  is  not  liable  for  this 
'  act."     The  giving  of  this  instruction  and  the  refusal  to  give  the 
instruction  asked  are  assigncMl  as  errors. 

Tiie  rule  is  familiar  that  an  employer  is  liable  for  tlie  torts  of  an 
employee  only  where  they  are  committed  in  the  course  of  his  em- 
])loyment.  The  difficulty  has  been  to  determine  what  acts  should 
be  deemed  within  the  course  of  his  employment.  If  in  this  case  the 
conductor  luul  forced  the  plaintiff  from  tlie  train  while  in  motion  and 
while  crossing  a  bridge,  the  act  very  chnirly  would,  under  the  evi- 
dence, \yci  deemed  to  be  in  the  course  of  his  employment,  and  that 
t'l')  fven  if  it  were  shown  that  he  had  been  expressly  instructed  to 
<]'<t  iif»  j)«>rson  from  tlu;  train  when  in  motion,  and  especially  when 
'  I  jtlace  .iH  dangerous  as  a  bridge.      In  one  sense,  tlie  specific 

;  not  be  in  the  course  of  his  employment,  but  his  general 


LIABILITY    FOR    INJURIES.  601 

employment  to  remove  trespassers  from  the  train  would  be   suffi- 
cient to  render  the  company  liable. 

But  it  appears  to  us  that  the  act  of  an  employee  of  a  railroad 
company  in  removingli""trespasser  from  a  trfiin  p.nnnnt  )-ip  nnncirif^Tpf]^ 
the  act  of  the  company,  unless  he  was  engaged  generally  to  remove 
trespassers,  or  specifically  to  remove  the  particular  trespasser.  The 
court  below  appears  to  have  thought  otherwise.  The  instruction 
given  proceeds  upon  the  theory  that  where  a  person  is  employed  to 
do  one  thing,  and  he  volunteers  to  do  another,  his  act  shall  never- 
theless be  deemed  to  be  within  the  scope  of  his  employment  if  his 
jnirpose  was  to  serve  his  employer.  But  in  our  opinion  the  purpose 
ofjthe  emj3loyee_is  not  in  a  case  like  the  one  at  bar  material.  The 
court,  we  think,  was  misled  by  a  distinction  which  has  been  drawn 
by  courts  in  a  different  class  of  cases.  Where  the  question  is  as 
to  whether  the  employer  is  liable  for  a  wilful  injury  done  by  an 
employee  it  is  sometimes  important  to  inquire  whether  the  em- 
ployee's purpose  was  to  serve  his  employer  by  the  wilful  act. 
Illinois  Central  Railroad  Co.  v.  Downey,  18  111.  259;  WrighTv. 
Wilcox,  19  Wend.  343;  Moore  v.  Sanborn,  2  Mich.  519;  Croft  v. 
Alison,  4  B.  &  Aid.  590;  Johnson  v.  Barber,  5  Oilman,  425;  Foster 
V.  Essex  Bank,  17  Mass.  479.  The  rule  is  that  an  employer  is  not 
liable  for  a  wilful  injury  done  by  an  employee,  though  done  while 
injbhe  course  ofKs  ero^Ioyment,  unless  the  employee's  purpose  was 
to  serve  his  employer  by  the  wilful  act.  Where  the  employee  is 
not  acting  within  the  course  of  his  employment,  the  employer  is 
not  liable,  even  for  the  employee's  negligence,  and  the  mere  purpose 
of  the  employee  to  serve  his  employer  has  no  tendency  to  bring  the 
act  within  the  course  of  his  employment.  Where  a  female  servant 
having  authority  to  light  fires  in  a  house,  but  not  to  clean  the 
chimneys,  lit  a  fire  for  the  sole  purpose  of  cleaning  a  chimney,  it 
was  held  that  her  employer  was  not  liable  for  an  injury  caused  by 
her  negligence  in  lighting  the  fire.  Mackenzie  v.  McLeod,  10  Bing. 
385.     See,  also,  Towanda  Coal  Co.  v.  Heenan,  86  Pa.  St.  418. 

In  our  opinion  the  court  erred  in  the  instruction  given  and  in 
refusing  the  instruction  asked  by  the  defendant.  Several  other 
questions  are  presented,  but  in  the  view  which  we  have  taken  of  the 
case  they  will  probably  not  arise  upon  another  trial. 

Reversed. 


KAMSDEN  V.   BOSTON",    etc.   R.    CO. 
104  Mass.  117.     1870. 
ToKT  for  an  assault  and  battery. 

Trial  in  the  Superior  Court,  before  Reed,  J.,  who  made  the  fol- 
lowing report  to  this  court:  — 


602  CARRIERS    OF    PASSENGERS. 

This  is  an  action  of  tort.  The  pleadings  make  a  part  hereof. 
The  plaintiffs  introduced  evidence  tending  to  show  that  the  female 
plaintiff  got  on  board  the  defendant's  cars  at  Newton  Corner,  for 
the  purpose  of  going  to  West  Xewton  in  an  evening  train ;  that  she 
paid  the  fare  to  the  conductor;  that  afterwards  the  conductor  de- 
manded the  fare  again;  that  she  said  she  had  before  paid  it;  that 
the  conductor  told  her  she  lied;  that  the  conversation  between  them 
was  in  a  loud  tone;  that  the  attention  of  people  in  the  cars  was 
attracted  by  it;  that  she  was  confused  and  shamed  and  excited  by 
it;  that  the  conductor  demanded  of  her  that  she  should  give  him 
her  parasol  to  keep  as  security,  or  as  payment  for  the  fare;  that 
she  refused;  that  he  took  hold  of  it,  and  after  somewhat  of  a 
struggle,  took  it  away  from  her;  and  that,  by  reason  of  this,  the 
said  plaintiff,  a  few  days  afterwards,  was  prematurely  delivered  of 
a  child,  and  had  suffered  much  in  healtli. 

"  After  the  testimony  for  the  plaintiffs  was  concluded,  the  judge 
announced  to  the  counsel  that  at  the  conclusion  of  the  case,  when- 
ever that  should  be,  the  rulings  would  be  as  follows;  and  that, 
after  hearing  them,  the  counsel  upon  the  one  side  or  the  other  might 
proceed  or  not  with  the  case  to  the  jury,  as  they  might  elect.  These 
are  the  rulings:  'Upon  the  pleadings,  the  action  is  tort  in  the  nature 
of  tresi)ass  for  an  assault.  In  order  to  maintain  the  action,  the 
plaintiffs  must  show  that  an  assault  was  committed  upon  the  female 
plaintiff.  A  conductor,  by  virtue  of  his  implied  authority  as  such, 
that  being  the  only  authority  shown  in  this  case,  has  no  right  to 
seize  articles  of  property  belonging  to  a  passenger  for  the  purpose  of 
thus  enforcing  tlie  payment  of  fare.  And  if  a  conductor  does  this, 
or  attempts  to  do  this,  and,  in  so  doing,  and  for  the  sole  purpose  of 
seizing  such  property,  commits  an  assault  on  a  passenger,  tlie  cor- 
jjoration  is  not  res[tonsible  in  trespass  for  such  acts.'  Upon  the 
announcement  of  these  rulings,  with  tlie  foregoing  statement  made 
by  the  judge  to  the  counsel,  the  plaintiff's  counsel  consented  to  a 
verdict  for  the  defendants." 

Grav,  J.     A  railroad  corjjoration  ij_liable,  to  the  same  extent  as 

an   individiial  W(tuld~Tte7~for  an~Tnjury  done  l)y  its  servant  in   the 

his  e in p  1  oy nTen t .  ~3Toorel'.'  Fitchburg  RailroaiTClo.,  4  Hray, 

;     .        l-witt   V.  Swift,  3  Allen,  420.      Holmes  v.    Wakefield,   12 

Allen,  rAO.     H  the  act  of  the  servant  is  within  the  general  scope  of 

•  laployment,  the  master  is  eq^ually  liable^   whether  the  act  is 

.!  or  iiuTely  negligent;  Howe  v.   Xewmarch,   12  Allen,  40;  or 

"Utrary  to  an  cx])ress  order  f>f  tlie  master.      I'hi];i(h-1- 

I •' iig  Railroad  Co.  v.  Derby,  14  How.  4GS. 

The  conductor  of  a  railroad  train,  from  the  necessity  of  the  case, 

"■'  '  -i  tlio  corporation  in  the  control  of  tlie  engine  and  cars,  the 

■  I  of  the  conduct  of  tlie  passengers  as  well  as  of  the  sub- 

ervants  of  the  corporation,   and  the  collection  of  fares. 

''  '''I   eject  a  passenger   for  not  i)ayiiig  fare,     o'l'iifii  v. 


LIABILITY    FOK    INJURIES.  603 

Boston  &  Worcester  Railroad  Co.,  15  Gray,  20.  It  has  been  ad- 
judged by  this  court  that  if,  in  the  exercise  of  his  general  discre- 
tionary authority,  he  wrongfully  ejects  a  passenger  Who  has  in  fact 
paid  his  fare ;  or  uses  excessive  and  unjustifiable  force  in  ejecting 
a  passenger  who  has  not  paid  his  fare,  and  injures  him  by  a  blow  or 
kick,  or  by  compelling  him  to  jump  off  while  the  train  is  in  motion, — 
in  either  case,  the  corporation  is  liable.  Moore  v.  Fitchburg  Rail- 
road Co.,  Hewitt  V.  Swift,  and  Holmes  v.  Wakefield  above  cited. 

We  are  all  of  opinion  that  this  case  cannot  be  distinguished  in 
principle  from  those  just  mentioned.  The  use  of  unwarrantable 
violence  in  attempting  to  collect  fare  of  the  plaintiff  was  as  much 
within  the  scope  of  the  conductor's  employment  as_thie_exercise  or 
threat_of^unjustifiable  force  in  ejecting  a  passenger  from  the  cars . 
Neither  the  corporation  nor  the  conductor  has  any  more  lawful 
authority  to  needlessly  kick  a  passengpr  nr  makp,  him  jnmp  fmm  fi-io 
cars  when  in  motion,  than  to  wrest  from  the  hands  of  a  passenger 
an  article  of  apparel  or  personal  use,  for  the  purpose  of  compelHiig 
the  payment  of  fare.  Either  is  an  unlawful  assault;  but  if  com- 
mittedjn  the  exercise  of  the  general  power  vested  by^he  corpora- 
tion_in  the  conductor,  the  corporation  as  w^ll  as  the  conductor  is 
liable  to  the  party  injured.  In  Monument  National  Bank  v.  Globe 
Works,  101  Mass.  59,  Mr.  Justice  Hoar  said,  "No  corporation  is 
empowered  by  its  charter  to  commit  an  assault  and  battery;  yet  it 
has  frequently  been  held  accountable  in  this  Commonwealth  for  one 
committed  by  its  servants." 

The  ruling  of  the  learned  judge  who  presided  at  the  trial,  that  if 
the  conductor,  in  seizing,  or  attempting  to  seize,  articles  of  property 
belonging  to  a  passenger,  for  the  purpose  of  thus  enforcing  the  pay- 
ment of  fare,  committed  an  assault  upon  the  passenger,  the  corpo- 
ration was  not  responsible  for  such  acts,  was  therefore  erroneous. 

Verdict  set  aside. 


CHICAGO,    ETC.    R.    CO.   v.    FLEXMAN. 
103  111.  546.     1882. 

Mr.  Chief  Justice  Craig.  This  was  an  action  brought  by 
James  Flexman,  against  appellant,  to  recover  damages  for  personal 
injuries  inflicted  upon  him  while  a  passenger  in  appellant's  cars,  by 
a  brakeman  in  the  employ  of  the  company. 

The  plaintiff,  as  appears  from  the  evidence,  procured  a  ticket 
from  Hoopeston  to  Milford,  and  took  passage  on  a  freight  train 
which  carried  passengers.  Soon  after  plaintiff  entered  the  car  he 
laid  down  in  a  seat  and  went  to  sleep.  When  the  train  arrived  at 
Milford  he  was  notified  by  the  conductor.     As  plaintiff  was  about 


604  CAKRIEKS  OF  PASSENGERS. 

to  leave  the  car  he  missed  his  watch,  aud  supposed  it  had  been 
stolen.  He  then  refused  to  leave  the  train  until  he  recovered  the 
watch,  and  the  conductor  consented  that  he  might  remain  on  the 
train  until  they  should  reach  Watseka.  After  the  train  had  started, 
a  passenger  assisted  plaintiff  in  making  a  partial  search  for  the 
watch,  but  it  was  not  then  found.  The  passenger  then  inquired  of 
phiintiff  who  he  thought  had  his  watch,  to  which  he  replied,  "  That 
fellow,"  pointing  at  the  brakeman.  Immediately  after  the  remark 
was  made  the  brakeman  struck  plaintiff  in  the  face  with  a  railroad 
lantern,  inflicting  the  injuries  complained  of.  These  are  substan- 
tially the  facts,  over  which  there  is  no  controversy  by  the  parties. 

After  the  plaintiff  had  introduced  all  his  testimony,  the  defendant 
entered  a  motion  to  exclude  the  evidence  from  the  jury,  and  asked 
for  an  order  directing  the  jury  to  find  a  verdict  for  defendant.  The 
court  denied  the  motion,  and  tlie  defendant  excepted.  This  de- 
cision of  the  court  presents  tlie  question  whether  the  facts  proven, 
conceding  them  to  be  true,  constitute  a  cause  of  action  against  the 
defendant. 

The  point  is  made  that  as  plaintiff  only  paid  fare  to  Milford  he 
ought  not  to  be  regarded  as  a  passenger  on  the  train  after  he  left 
that  place.  ^Ye  do  not  regard  tliis  position  well  taken.  The  con- 
ductor did  not  demand  or  require  fare  from  the  plaintiff;  had  he 
done  so,  no  doubt  the  required  amount  would  have  been  paid.  As 
the  conductor  failed  to  call  for  fare,  it  must  be  regarded  as  waived. 
At  all  events,  we  have  no  hesitation  in  holding  that  the  railroad 
companj^occupied  the  same  position  towards  plaintiff  that  it  would 
have  occupied  hatl  he  paid  his  fare. 

lint  it  is  said,  "tliat  if  the  plaintiff  was  injured  by  a  servant  of 
appellant,  it  was  an  act  outside  of  the  emi)loyment  of  tlie  servant 
who  cfiminitted  the  act,  and  not  in  furtherance  of  liis  einjjloymcnt 
by  the  master."  This  position  is  predicated  upon  !McManus  v. 
Cricket,  1  East,  lOG,  and  like  cases  which  have  followed  it.  In  the 
case  cited  Lord  Kenyon  said:  "It  is  laid  down  by  Holt,  Ch.  J.,  as 
a  ^'ciieral  position,  '  that  no  master  is  cliargeable  with  the  acts  of  his 
h' rvant  but  wlien  he  acts  in  the  execution  of  the  authority  given 
him.'  Now,  when  a  servant  quits  sight  of  the  object  for  which  he 
is  employed,  and  witliout  having  in  view  his  master's  orders  pursues 
tliat  which  liis  own  malice  suggests,  he  no  longer  acts  in  i)ursuance 
<»f  the  authority  given  him,  and,  according  to  the  doctrine  of  Lord 
Holt,  his  master  will  not  be  answerable  for  such  act."  Tlie  doc- 
t.i;io  announced  is  no  doubt  correct  when  [i|4i1i>'d  t^^  ='  p^'^q'^T  f'nsf^. 

!•     ♦'■••   '■xnmple^a  COndll£tiUl.i)X_hiakciUaJl   in    tlie  iMnplny  of  a   r.iil- 

pany  should  wilfully  or  malir-iousl^' af^sault  a  stranger, — 

■  uij  to  whom   tlie   railroad  company  ow«^d  no  oliligation  wliat- 

—  thf  m:i"t<r  in  ^nrh  a  r:v<o  Avoiild  not  bn  liahl.'    tor  tlu-  act  of 

doctrine  is  invoked  to  control  a 
•■  —■'   ■■  ■>"  ■'■    .<  iiL  ^i.i..:  ij  vu  iu.i'ic  by  the  servant  of  the  com])any 


LIABILITY    FOR    INJURIES.  C05 

upon  a  passenger  on  one  of  its  trains,  a  different  question  is  pre- 
sented, —  one  which  rests  entirely  upon  a  different  principle. 

What  are  the  obligations  and  duties  of  a  common  carrier  toward 
its  passengers?  In  Keokuk  Northern  Line  Packet  Co.  v.  True,  88 
111.  608,  it  was  held  that  a  steamboat  company,  as  a  carrier  of  pas- 
sengers for  hire,  is,  through  its  officers  and  servants,  bound  to  the 
utmost  practicable  care  and  diligence  to  carry  its  passengers  safely 
to  their  place  of  destination,  and  to  use  all  reasonably  practicable 
care  and  diligence  to  maintain  among  the  crew  of  the  boat,  includ- 
ing deck  hands  and  roustabouts,  such  a  degree  of  order  and  disci- 
pline as  may  be  requisite  for  the  safety  of  its  passengers.  The 
same  rule  that  governs  a  steamboat  company  must  also  be  applied 
to  a  railroad  company,  as  the  duties  and  obligations  resting  upon 
the  two  are  the  same,  or  any  other  company,  which  carries  passen- 
gers for  hire.  In  Goddard  v.  Grand  Trunk  Ry.  Co.,  57  Me.  202,  in 
discussing  this  question,  the  court  says:  "The  carrier's  obligation 
is  to  carry  his  passenger  safely  and  properly,  and  to  treat  him  re- 
spectfully; and  if  he  intrust  the  performance  of  this  duty  to  his 
servants,  the  law  holds  him  responsible  for  the  manner  in  which 
they  execute  the  trust.  .  .  .  He  must  not  only  protect  his  passen- 
gers against  the  violence  and  insults  of  strangers  and  co-passengers, 
but,  a  fortiori,  against  the  violence  and  insults  of  his  own  servants. 
If  this  duty  to  the  passenger  is  not  performed,  —  if  this  protection  is 
not  furnished,  — but,  on  the  contrary,  the  passenger  is  assaulted  and 
insulted  through  the  negligence  of  the  carrier's  servant,  the  carrier 
is  necessarily  responsible."  In  Bryant  v.  Rich,  106  Mass.  180, 
where  the  plaintiff,  a  passenger  on  a  steamboat,  was  assaulted  and 
injured  by  the  steward  and  some  of  the  table  waiters,  the  defend- 
ant, as  a  common  carrier,  was  held  liable  for  the  injury.  In 
Croaker  v.  Chicago  and  Northwestern  Ry.  Co.,  36  Wis.  657,  where 
the  conductor  of  a  railroad  train  kissed  a  female  passenger  against 
her  will,  the  court,  in  an  elaborate  opinion,  held  the  railroad  com- 
pany liable  for  compensatory  damages.  It  is  there  said:  "We  can- 
not think  there  is  a  question  of  the  respondent's  right  to  recover 
against  the  appellant  for  a  tort  which  was  a  breach  of  the  contract 
of  carriage,"  In  Shirley  v.  Billings,  8  Bush,  147,  where  a  passenger 
on  defendant's  boat  was  assaulted  and  injured  by  an  officer  on  the 
boat,  the  defendant  was  held  liable.  See,  also,  IMcKinley  v.  Chicago 
and  Northwestern  R.  R.  Co.,  44  Iowa,  314,  and  N.  0.,  St.  L.  and  C. 
R.  R.  Co.  V.  Burke,  53  Miss.  200.  Many  other  authorities  holding 
the  same  doctrine  might  be  cited,  but  we  do  not  regard  it  necessary. 
It  is  true  there  are  authorities  holding  the  opposite  view,  but  we  do 
not  think  they  declare  the  reason  or  logic  of  the  law,  and  we  are  not 
prepared  to  follow  them. 

The  appellant  was  a  common  carrier  of  passengers.  As  such  it 
was  not  an  insurer  against~~any  possible  injury  that  a  passenger 
raight  receive  while  on  the  train,  but  the  company  was  bound  to 


606  CARUIERS   OF   PASSENGERS. 

funnsh  a  safe  track,  cars,  and  machinery  of  the  most  approved 
"^  '        the  trains  in  the  hands  of  skiltui  eui^^meers  and 

c,  .  isT — the  agents  and  servants  were  bound  to  be 

qualified  and  competent  for  their  several  exnployments.  Ag;\in,, 
fTT^—  •''iuired  appellant,  as  a  common  carrier,  to  use  all  reasun- 
a  :on  to  protect  its  passengers  from  insult  or  injury  from 

7.  ' •  rs  who  might  be  on  the  troin,  and  if  tlip.  ii/MMits  i^f 

£•  ::irge  of  the  train  should  tail  to  use  rpnsonnl.lp  .lili- 

gence  to  protect  its  passen<^ers  from  injuries  from  stvnnjj.M-s  w^ilp 
on  board  tlie^train,  the  compan^^  would  be  Jjabjg-  So,  too,  the  con- 
tra.-r  which  existed  between  appellant  as  a  common  oarvier  and 
a^  -;  a  passenger  was  a  guaranty  on  behalf  of  the  carrier  that 

a]^^  :iouId  be  protected  a'^^ainst  ])ersonal  injury  from  the  a^'-ents 

oFservants  of  appellant  in  charge_of  the  train.  The  company  placed 
these  men  in  charge  of  the  train."  It  alone  had  the  power  of  re- 
moval, and  justice  demands  that  it  should  be  held  responsible  for 
their  wrongful  acts  towards  passengers  while  in  charge  of  the  train. 
Any  other  rule  might  place  the  travelling  public  at  the  mercy  of 
any  reckless  employee  a  railroad  company  might  see  fit  to  employ, 
and  we  are  not  inclined  to  establish  a  precedent  which  will  impair 
the  personal  securit}'  of  a  passenger. 

We  are  of  opinion  tliat  the  evidence  showed  a  legal  cause  of  action 
in  plaintiff,  and  the  court  did  not  err  in  overruling  the  motion  to 
exclude  the  evidence  from  the  jury.  Two  instructions  given  for  the 
plaintiff  have  been  somewhat  criticised,  but  we  think  they  were  in 
the  main  correct. 

The  judgment  will  be  affirmed. 


FICK  V.    CHICAGO,    etc.  K.    CO. 

68  Wis.  4(59.     1887. 

Actios  to  recover  damages  for  injuries  occasioned  by  an  assault 
upon  the  plaintiff  by  one  of  the  defendant's  employees.  The  com- 
plaint alleges  that  the  plaintiff  applied  at  the  station  at  Wilton  for 
ft  ticket  to  Xorwalk,  and  handed  to  the  j)erson  in  the  ticket  office 
11'  to  take  therefrom   the   price   of  the   ticket,    which   w;is 

t  nt.s;   that  such  person  handed  to  him  the   proj^'r  ticket, 

but  only  returne<l  ten  cents  in  change;  that  the  plaintiff"  having 
calli'd  att^-ntion  to  the  mistake,  the  said  agent  or  employee  refused 
Ui  rpturn  thr»  balance,  came  out  of  the  ticket  office  in  an  angry  man- 
ii'  1  t(»  the  jihitform;  that  the  jtlaintiff  again  requested 

f-  •  '    return   the  change,    and   that  thereupon   the   agent 

tuisautt<-(l  and  struck  him. 


LIABILITY   FOR   INJURIES.  607 

The  answer  alleged  that  the  plaintiff  with  two  or  three  compan- 
ions, all  grossly  drunk,  entered  the  station  at  Wilton  and  commenced 
an  assault  upon  one  E.  W.  Davis,  who  was  then  and  there  engaged 
in  the  business  of  mail  carrier  from  the  post-office  at  Wilton  to  the 
trains  of  the  defendant,  and  that  the  said  Davis  resisted  as  he  law- 
fully might.  Otherwise  the  answer  denies  the  allegations  of  the 
complaint. 

The  jury  returned  a  special  verdict.  The  facts  found  therein 
will  sufficiently  appear  from  the  opinion.  The  jury  also  assessed 
the  plaintiff's  damages  at  $200.  Both  parties  moved  for  judgment 
on  the  special  verdict.  The  motion  of  the  plaintiff  was  granted, 
and  from  the  judgment  entered  accordingly,  the  defendant  appealed. 

Cole,  C.  J.  The  plaintiff  had  purchased  a  ticket  at  the  ticket 
office  at  Wilton,  for  his  transportation  to  Norwalk,  so  the  relation 
of  carrier  and  passenger  existed  at  the  time  of  the  assault.  It  is 
needless  to  say  that  the  company  and  its  agents  owed  him  fair  and 
proper  treatment  while  this  relation  existed.  The  jury  found  that 
one  Fred  E.  Davis  was  the  station  agent  at  Wilton  when  the  ticket 
was  purchased;  that  Edward  W.  Davis  was  employed  at  Wilton  to 
carry  the  mail  from  the  trains  to  the  post-office,  and  was  employed 
in  no  other  capacity;  that  at  the  time  in  question  the  plaintiff  pur- 
chased of  Edward  W.  Davis,  temporarily  in  the  ticket  office  at 
Wilton,  by  permission  of  Fred  E.  Davis,  a  ticket  to  Korwalk,  the 
price  of  which  was  twenty  cents,  and  tendered  him  fifty  cents  in 
payment  thereof;  that  Edward  W.  Davis  returned  to  the  plaintiff 
too  small  an  amount  of  change,  and  informed  him  that  they  had  no 
change  and  would  either  send  it  to  him  or  hand  it  to  him  when  he 
came  again;  that  Edward  W.  Davis  committed  the  first  assault 
upon  the  plaintiff  at  this  time;  and  that  the  plaintiff  was  intoxicated. 

Upon  these  simple  facts  the  conduct  of  the  employee,  Edward  W. 
Davis,  in  assaulting  the  plaintiff,  would  appear  to  be  wholly  inde- 
fensible and  without  any  legal  excuse.  The  plaintiff  had  given  him 
money  to  pay  for  his  ticket,  and  he  was  entitled  to  have  his  correct 
change  returned.  It  was  natural  that  he  should  ask  for  it  and  per- 
sist in  demanding  it.  The  agent  had  no  possible  right  or  justifi- 
cation for  assaulting  him  because  he  did  insist  upon  the  correct 
amount  of  change  being  returned.  Of  course,  the  defendant  owed 
the  plaintiff  the  duty  of  treating  him  respectfully  and  properly. 
Certainly  it  was  bound  to  protect  him  against  the  violent  acts  or 
misconduct  of  its  agents.  There  would  probably  be  no  controversy 
as  to  the  correctness  of  this  view  of  the  law,  or  as  to  the  liability  of 
the  defendant  for  the  wilful  act  of  a  servant  while  acting  in  the 
course  of  his  employment. 

It  is  said  that  Edward  W.  Davis  was  not  the  station  agent  at 
Wilton,  but  was  merely  employed  to  carry  the  mails  from  the  trains 
to  the  post-office,  and  was  employed  in  no  other  capacity.  But  he 
was  in  the  ticket  office,  sold  the  plaintiff'  a  ticket,  and  received  pay 


608  CAKRIEIIS   OF   PASSENGERS. 

therefor.  It  is  alleged  in  the  complaint  that  the  plaintiff  went  to 
the  station  for  the  purpose  of  taking  passage  on  the  train  due  iu  a 
few  minutes,  and  purchased  a  ticket  of  an  employee  in  charge  of 
the  ottice.  Now,  while  it  may  be  true  that  Edward  W.  Davis  was 
not  the  regular  ticket  agent,  yet  under  the  circumstances  he  must 
be  regarded  as  authorized  to  issue  the  ticket.  The  special  verdict 
finds  that  at  this  time  tiie  "  fracas  "  occurred,  or  the  unlawful  assault 
was  committed.  Now,  to  say  that  Edward  W.  Davis  was  a  servant 
of  the  defendant  in  selling  the  ticket  and  receiving  pay  for  it,  but 
while  in  the  act  of  refusing  to  return  the  proper  change  and  in 
making  the  assault,  was  acting  outside  the  course  of  his  employ- 
ment, is  refining  too  much  upon  the  transaction.  It  is  not  as  though 
the  fracas  had  occurred  at  a  subsequent  time  and  place  disconnected 
with  the  act  of  selling  the  ticket  and  making  change.  Of  course, 
the  rule  is  familiar  that  the  master  is  liable  for  the  torts  of  his  ser- 
vant only  when  they  are  committed  in  the  course  of  his  emplo}-- 
ment,  and  we  do  not  intend  to  disregard  that  rule  here.  It  is  often 
difficult  to  determine  what  acts  should  be  deemed  within  the  course 
of  the  employment;  but  it  seems  to  us,  upon  the  facts,  that  the 
assault  made  upon  the  plaintiff  is  one  for  wliich  the  defendant  is 
liable.  It  would  be  unjust  to  hold  that  the  defendant,  which  was 
bound  to  use  all  due  diligence  to  carry  the  plaintiff  safely  to  his 
destination,  was  not  bound  to  protect  him  against  the  violent  act  of 
its  servant  under  the  circumstances  of  the  case.  True,  the  jury,  in 
answer  to  the  fourteenth  question,  find  that  the  striking  of  the 
plaintiff  by  Edward  W.  Davis  was  not  done  by  him  in  the  course 
of  his  employment.  But  this,  in  view  of  the  other  findings,  amounts 
only  to  a  conclusion  of  law,  and  is  not  controlling  as  to  the  fact.  It 
is  like  the  question  presented  in  llugan  v.  C,  M.  &  St.  1'.  11.  Co., 
o'J  Wis.  130,  where  it  was  held  that,  if  the  special  findings  by  the 
jury  and  the  averments  of  the  complaint  conclusively  show  that  the 
defendant  was  free  from  any  negligence  causing  the  injury  com- 
plained of,  a  finding  in  the  verdict  that  the  defendant  was  guilty  of 
such  negligence  will  be  treated  merely  as  an  erroneous  conclusion 
of  law,  and  will  have  no  weight  in  determining  what  judgment 
should  be  entered.  So  here,  where  the  other  findings  show  that 
Edward  W.  Davis  was  acting  in  the  course  of  his  employment  when 
he*  committed  thr;  unlawful  act  comi)hiined  of,  the  fourtccntli  finding 
muHt  be  treated  as  an  erroneous  conclusion  of  law,  which  can  have 
no  weight  in  determining  what  judgment  shall  be  entered. 


LIABILITY   FOR   INJURIES.  609 


c.    Acts  of  fellow-passengers  or  others. 

PUTNAM   V.   BROADWAY,    etc.    R.    CO. 

55  N.  Y.  108.     1873. 

Action  by  Ellen  S.  Putnam,  as  administratrix,  against  the  Broad- 
way and  Seventh  Avenue  Railroad  Company  to  recover  for  the 
death  of  Avery  D.  Putnam,  plaintiff's  intestate,  who  was  killed  by 
William  Foster,  the  deceased  and  Foster  being  at  the  time  fellow- 
passengers  on  defendant's  street  car. 

It  appeared  that  Putnam,  in  company  with  two  ladies,  was  ridino- 
in  the  car,  when  Foster,  who  •  was  intoxicated,  got  on  the  car  and 
rode  quietly  on  the  front  platform.  He  afterward  went  inside  and 
made  insulting  remarks  and  signs  to  the  ladies.  Putnam  called  the 
conductor  to  keep  "this  man  quiet."  The  conductor  told  Foster  to 
"sit  down  and  be  quiet,"  and  went  back  to  the  rear  platform. 
Foster  then  threatened  Putnam  with  violence,  in  a  tone  of  voice  so 
low  that  the  conductor  did  not  hear.  Foster  went  again  upon  the 
front  platform  and  remained  quiet.  When  the  car  stopped  to  allow 
Putnam  and  the  ladies  to  leave,  Foster  seized  the  car  hook,  and 
running  to  the  back  platform,  assaulted  Putnam  as  he  was  assisting 
his  companions  to  alight,  and  struck  him  two  blows,  from  the  effects 
of  which  Putnam  subsequently  died.  Plaintiff  obtained  judgment, 
which  was  afhrmed  at  general  term.  The  defendant  appealed  to 
this  court, 

Allen,  J.  The  questions  presented  upon  this  appeal  are  founded 
upon  exceptions  to  the  refusal  to  nonsuit  the  plaintiff  at  the  close 
of  the  trial.  If  the  evidence,  upon  any  view  that  can  be  taken  of 
it,  entitled  the  plaintiff  to  a  verdict,  the  judgment  must  be  affirmed. 
The  case  was  submitted  to  the  jury  with  great  fairness,  and  with 
accurate  instructions  as  to  the  law,  if  there  was  in  truth  any  evi- 
dence of  neglect  of  duty,  or  want  of  care  on  the  part  of  the  servants 
and  agents  of  the  defendant  to  which  the  injury  to  and  death  of  the 
plaintiff's  intestate  could  legally  be  attributed. 

The  cases  bearing  upon  the  liability  of  railway  companies,  and 
other  carriers  of  human  beings  as  passengers  for  hire,  for  any  de- 
fect in  their  roadways,  carriages,  and  other  vehicles  of  transporta- 
tion, any  neglect  or  want  of  care  by  themselves,  their  agents  or 
servants  in  the  performance  of  the  service  undertaken,  and  for 
injuries  caused  by  or  resulting  directly  from  the  acts  of  the  carrier 
or  his  servants,  either  to  the  passenger  or  third  persons,  may  be  laid 
out  of  view,  except  as  they  serve  to  indicate  the  stringency  and 
extent  of  the  liability  imposed  by  law  upon  carriers,  and  the  extreme 

39 


610  CARRIERS    OF    PASSEXGERS. 

care  and  diligence  required  of  them,  in  all  that  concerns  their  own 
acts  and  the  agencies  and  means  employed  by  them.  The  acts, 
neglects,  and  omissions  complained  of  here,  upon  which  the  action  is 
biised,  do  not  come  within  either  class  of  cases  referred  to.  The 
p;issenger  was  carried  in  a  safe  and  proper  manner,  and  there  is  no 
complaint  of  injury,  from  any  defect  in  the  means  of  conveyance,  or 
any  act  or  omission  of  duty  on  the  part  of  the  servants  of  the  com- 
pany in  respect  to  the  plaintiff's  intestate  personally.  The  wrong 
and  injury  complained  of  is  the  wantou  and  unprovoked  as  well  as 
unlooked-for  attack  of  a  fellow-passenger,  resulting  in  the  death  of 
the  intiividual  assailed,  and  the  defendant  is  sought  to  be  charged 
for  the  resulting  damages  on  the  ground  that  the  servants  and  agents 
of  the  company,  in  charge  of  the  car,  negligently  and  improperly 
omitted  to  exercise  police  powers  with  which  they  are  invested  for 
the  protection  of  well-disposed  and  peaceable  passengers. 

There  is  no  such  privity  between  a  railway  company  and  a  pas- 
senger as  to  make  it  liable  for  the  wrongful  acts  of  the  passenger 
upon  any  principle.  Pittsburgh,  F.  W.  &  C.  R.  Co.  v.  Hinds,  i53 
Penn.  St.  512  [615].  But  a  railroad  company  lias  the  power  of 
refusing  to  receive  as  a  passenger,  or  to  expel  any  one  who  is  drunk, 
disorderly,  or  riotous,  or  who  so  demeans  himself  as  to  endanger  the 
safety  or  interfere  with  the  reasonable  comfort  and  convenience  of 
the  other  passengers,  and  may  exert  all  necessary  power  and  means 
to  eject  from  the  cars  any  one  so  imperilling  the  safety,  or  annoying 
others;  and  this  police  power  the  conductor,  or  other  servant  of  the 
company  in  charge  of  the  car  or  train,  is  bound  to  exercise  with  all 
the  means  he  can  command,  whenever  occasion  requires.  If  this 
duty  is  neglected  without  good  cause,  and  a  passenger  receives 
injury,  which  might  have  been  reasonably  anticipated  or  naturally 
expected,  from  one  who  is  improperly  received,  or  permitted  to  con- 
tinue as  a  passenger,  the  carrier  is  responsible.  Pittsburgh,  F.  W, 
&  C.  11.  Co.  V.  Hinds,  supra  ;  Flint  v.  Norwich  and  N.  Y.  Trans- 
IK)rtation  Co.,  34  Conn,  .1.54;  G  Blatch.  C.  C.  158.  In  the  case  first 
cited,  a  jiassenger  was  seriously  injured  by  a  large  body  of  drunken 
and  riotous  persons,  who  came  ujjou  the  train  in  defiance  of  the 
conductor  in  charge;  and  the  court  ///  fm/ic  liold  that,  upon  the 
evidence  in  that  case,  the  only  rpicstion  wliich  should  have  been 
submitted  to  the  jury  was  whether  tlie  conductor  did  all  he  could  to 
quf'll  tlio  riot  and  eject  the  rioters,  and  tliat  if  he  did  not  the  com- 
pany was  liable.  The  judge  at  nisi  jirius  having  submitted  other 
questions,  to  wit,  whether  the  conductor  allowed  improper  persons 
on  the  train,  and  whether  he  allowed  more  persons  on  the  train  than 
was  proper,  a  verdict  ff^r  the  plaintiff  was  set  aside,  and  a  vniirr  ih 
7ior>,  f<rdered.  In  tlie  other  case,  tlu^  action  was  for  an  injury  re- 
ef i  v. d  by  the  plaintiff,  a  pa.ssenger  on  the  defendant's  steamboat, 
from  the  falling  and  consequent  discharge  of  a  loaded  musket,  by 
one  of  a  great  number  of  riotous  ami  ilrunken  soldiers  engaged  in 


LIABILITY   FOR  INJURIES.  611 

an  affray,  and  occupying  a  part  of  the  boat  assigned  to  passengers, 
the  plaintiff  being  suffered  to  enter  the  boat  and  pass  to  this  part  of 
it  without  any  warning  from  the  officers  of  the  boat,  or  others,  of 
the  presence  of  these  soldiers,  and  the  defendants  making  no  effort 
to  preserve  the  peace  or  remove  the  offenders.  Upon  conflicting 
evidence  the  jury  found  for  the  plaintiff.  Judge  Shipman,  in  his 
charge  to  the  jury,  instructed  them  that  "the  defendants  were 
bound  to  exercise  the  utmost  vigilance  in  maintaining  order,  and 
guarding  the  passengers  against  violence,  from  whatever  source 
arising,  which  might  reasonably  be  anticipated,  or  naturally  be 
expected  to  occur  in  view  of  all  the  circumstances,  and  of  the  num- 
ber and  character  of  the  persons  on  board."  This,  as  a  rule  of  duty 
and  liability,  is  in  strict  analogy  and  consistent  with  the  rules  by 
which  the  liability  of  common  carriers  of  persons  for  hire  is  deter- 
mined in  other  cases,  and  seems  to  be  well  expressed  and  properly 
limited.  It  may  be  conceded  that  Foster,  the  individual  who  in- 
flicted the  injury  resulting  in  the  death  of  the  plaintiff's  intestate, 
was  drunk  when  he  came  on  the  car;  but  so  long  as  he  remained 
quietly  by  the  driver  on  the  platform,  neither  entering  the  car,  nor 
molesting  or  annoying  the  passengers  in  any  way,  there  was  no 
occasion  for  removing  him,  and  the  conductor  would  not  have  been 
justified  in  refusing  to  permit  him  to  remain  as  a  passenger.  The 
fact  that  an  individual  may  have  drank  to  excess  will  not,  in  every 
case,  justify  his  expulsion  from  a  public  conveyance.  It  is  rather 
the  degree  of  intoxication,  and  its  effects  upon  the  individual,  and 
the  fact  that,  by  reason  of  the  intoxication,  he  is  dangerous  or  an- 
noying to  the  other  passengers,  that  gives  the  right  or  imposes  the 
duty  of  expulsion. 

While  Foster  remained  on  the  platform  of  the  car,  neither  inter- 
fering with  or  noticing  the  other  passengers,  there  was  nothing  to 
indicate  to  the  conductor  that  his  presence  was  offensive  to  the  pas- 
sengers, or  that  there  was  danger  of  harm  to  any  one  from  him. 
There  was  during  that  time  no  occasion,  and  would  have  been  no 
propriety,  in  causing  his  removal  from  the  car.  He  did,  however, 
thereafter  make  himself  peculiarly  obnoxious  to  the  other  passen- 
gers, and  by  his  conduct  and  demeanor  grossly  insult  and  annoy 
them,  and  gave  occasion  for  the  exercise  of  the  power  of  removal, 
had  the  conductor  seen  fit,  or  been  called  upon  to  exercise  it;  and 
had  he  continued  his  annoying  practices,  the  conductor  would  have 
been  faithless  to  his  duty  had  he  suffered  him  to  remain  on  the  car. 
After  Foster  came  into  the  car  and  insulted  and  intimidated  the 
females  under  the  protection  of  the  deceased,  the  latter  appealed  to 
the  conductor,  not  to  exclude  Foster  from  the  car,  but  to  make  him 
be  quiet,  and  the  conductor  directed  him  to  sit  down  and  be  quiet, 
and  he  did  thereupon  take  a  seat  on  the  opposite  side  of  the  car  from 
the  females,  and  near  the  deceased,  and  after  remaining  there  a 
short  time  left  the  car,  and  took  his  place  on  the  front  platform,  the 


612  CARRIERS   OF   PASSENGERS. 

front  door  of  the  car  being  closed,  and,  during  the  residue  of  the 
passage  to  Forty-sixth  Street,  gave  no  occasion  of  complaint,  so  far 
as  appears.  He  was  during  that  time  peaceable  and  inoffensive. 
During  this  latter  part  of  the  ride  there  was  no  occasion  for  remov- 
ing him  from  the  car,  unless  the  occasion  and  a  necessity  for  such 
removal  was  furnished  by  his  previous  conduct,  showing  that  he 
was  a  dangerous  or  improper  person  to  remain.  He  had  ceased  to 
address  or  in  any  way  to  insult  or  annoy  the  females,  upon  being 
requested  by  the  conductor  to  sit  down  and  be  quiet;  and  his  ready 
compliance  with  that  request,  and  his  taking  his  place  soon  there- 
after on  the  platform,  and  proceeding  quietly  and  peaceably  on  his 
journey,  was  some  evidence  that  there  was  no  reason  to  apprehend 
a  renewal  of  his  insults  in  that  direction,  and  justified  the  conductor 
in  at  least  giving  him  the  benefit  of  a  further  probation.  This  was 
precisely  in  accord  with  the  suggestion  of  the  deceased;  neither  he 
nor  the  conductor  apprehending  any  serious  harm  or  injury,  cer- 
tainly not  a  wanton  and  murderous  attack  upon  any  one  with  a 
dangerous  weapon.  It  is  true,  that  on  taking  his  seat,  he  did  not 
observe  the  strictest  rules  of  propriety,  anc|,  by  putting  his  feet  on 
the  seat,  violated  good  taste  and  good  manners;  but  it  was  not  an 
offence  of  which  the  passengers  could  very  seriously  complain,  or 
which  essentially  violated  their  rights,  so  long  as  there  was  abun- 
dant room  for  all,  and  there  was  no  indecency  in  the  position. 
This  breach  of  good  manners  certainly  did  not  tend  to  show  that  he 
was  a  dangerous  man,  and  was  condoned  by  his  subsequent  witli- 
drawal  from  the  seat  and  the  body  of  the  car  entirely.  It  is  also  in 
evidence  that,  while  seated  near  the  deceased,  he  directed  abusive 
language  to  him,  and  made  threats  indicating  an  intent  to  do  liim 
some  bodily  liarm  before  he  left  the  car.  But  all  this  was  in  an 
undertone,  and,  so  far  as  appears,  was  unheard  by  the  conductor, 
occupying  his  proper  place  on  the  rear  platform,  and  neither  the 
deceased  nor  any  one  else  called  the  attention  of  the  conductor  to  it. 
It  was  ])robably  treated  with  indifference  by  the  deceased  and  all 
who  heard  it,  and  regarded  as  the  maudlin  and  senseless  gabble  of 
a  drunken  man,  unworthy  of  notice,  and  incapable  of  creating  any 
apjjrehension  of  danger  or  harm.  But  be  this  as  it  may,  there  is  no 
evidence  to  justify  an  inference  that  the  conductor  did  hear,  or  could 
have  heard  or  known  of  the  abuse  or  threat,  so  that  to  him  they 
were  not  evidence  that  he  was  an  unsafe  and  dangerotis  man,  or  that 
there  was  any  reason  to  ajiprehend  injury  to  the  other  passengers 
from  him  or  his  acts. 

The  conductor  was  only  ealled  upon  to  act  upon  imiiroijrictics  or 
offences  witnes.sed  V)y  him,  or  made  known  to  him  in  some  other 
way,  and  the  defendants  can  only  be  charged  for  neglect  of  some 
duty  arising  from  circumstances  of  wliich  the  conductor  was  cog- 
ni/.;ii)t,  or  of  which  he  ought,  in  the  discharge  of  Ijis  duties  as  con- 
ductor, to  have  been  cognizant. 


LIABILITY   FOR   INJURIES.  613 

There  was  no  evidence  tending  to  show  that  the  conductor  was 
in  fault  for  not  removing  the  person  of  Foster  from  the  car.     He 
exerted  his  police  powers  by  causing  him  to  desist  from  his  offen- 
sive acts  and  approaches  toward  the  females,  and  supposed  that  he 
had  done  all  that  was  necessary  to  preserve  the  peace  and  keep  good 
order  upon  the  car,  to  secure  the  other  passengers  against  further 
annoyance,  as  well  as  all  that  the  deceased  asked  him  to  do.     If  the 
peace  could  be  preserved  and  the  quietness  and  comfort  of  the  pas- 
sengers could  be  secured,  as  he  supposed  he  had  done,  without  the 
expulsion  of  the  offender,   the   conductor   could  hardly  have  been 
called  upon  to  proceed  to  extremities  and  put  the  latter  from  the  car 
by  force.     An  unnecessary  resort  to  force,  in  ejecting  a  passenger 
from  the   car,  might  have  given  the  passengers,  male  as  well  as 
female,  more  pain  and  annoyance  than  would  the  mere  presence  of 
a  drunken  man,  and  possibly  might  have  seriously  imperilled  their 
persons.     There  was  no  evidence  of  any  neglect  of  duty  on  the  part 
of  the  conductor  in  omitting  to  remove  the  person  of  Foster  from 
the  cars ;  and  whatever  may  be  the  duties  or  powers  of  the  driver, 
except  as  he  is  in  subjection  to  the  conductor,  there  is  no  evidence 
that  he  had  any  notice  or  knowledge  of  any  impropriety  of  conduct 
or  the  threatening  language  on  the  part  of  Foster,  except  as  he  must 
have  witnessed  what  passed  before  Foster  entered  the  car.     There 
is  no  evidence  that  he  had  knowledge  of  what  transpired  within  the 
car;  and  after  Foster's  return  to  the  platform  there  was  nothing,  so 
far  as  appears,  to  excite  alarm,  or  create  apprehension  of  danger  or 
disturbance  or  annoyance  of  any  kind.     There  was  an  entire  absence 
of  evidence   of   any   connection  or  complicity  of  the  driver  with 
Foster,  or  that  the  driver  was  responsible  for  the  possession  by  the 
latter  of  the  iron  instrument  with  which  the  blows  were  inflicted 
that  caused  the  death  of  Putnam.     There  was  no  proof  from  whence 
or  of  whom  Foster  obtained  it,  and  none  to  show  that  the  driver 
either  acquiesced  in  or  assented  to  the  taking  of  it  by  Foster,  or 
that  he  knew  that  Foster  had  it.     There  was  no  evidence  of  negli- 
gence or  omission  of  duty,  or  want  of  proper  care  and  vigilance  on 
the  part  of  the  servants  and  agents  of  the  company  in  preserving 
order  and  keeping  the  peace  on  the  cars,  and  protecting  the  passen- 
gers, to  be  submitted  to  the  jury;  most  certainly,  none  connected 
with  the  attack  upon  and  death  of  the  intestate,  or  to  which  it  can 
be  legally  or  logically  traced.     The  rule  cannot  be  better  or  more 
concisely  expressed  than  as  stated  by  Judge  Shipman  in  Flint  r. 
Norwich  &  N.  Y.  Transportation  Co.,  supra:  "That  for  any  neglect 
or  omission  of  duty  in  the  preservation  of  order  and  the  removal  of 
dangerous  and  offensive  persons  by  the  owner  of  a  public  conveyance 
for  the  transportation  of  passengers,  or  his  servants  or  agents,  the 
carrier  is  liable  for  any  injury  to  other  passengers  which  might 
reasonably  be  anticipated,  or  naturally  be  expected  to  occur  in  view 
of  all  the  circumstances,  and  of  the  number  and  character  of  the 


C14  CARRIERS   OF   PASSENGERS. 

persons  on  board."  It  does  not  follow  and  cannot  be  presumed  that 
because  a  man  is  drunk,  and  is.  in  that  condition,  offensive  to  others, 
05  well  by  his  demeanor  as  in  his  appearance,  that  he  is  a  dangerous 
man,  and  that  his  presence  imperils  the  safety  of  others ;  that  be- 
cause he  is  drunk  he  may  violently  assault  or  murder  others  without 
provocation. 

If  there  was  anything  in  the  condition,  conduct,  appearance,  or 
manner  of  Foster  from  which  the  jury  could  reasonably  infer  that 
there  was  reason  to  expect  or  anticipate  an  attack  upon  the  deceased, 
or  any  other  passenger,  either  while  upon  the  car  or  in  the  act  of 
leaving,  the  facts  authorizing  such  inference  should  have  been 
proved,  and  knowledge  of  them  brought  home  to  the  conductor. 
The  injury  to  and  death  of  Mr.  Putnam  was  immediately  and  directly 
caused  by  the  murderous  attack  of  Foster,  and  the  carriage  of  the 
murderer  by  the  defendant  had  no  connection  with  and  did  not  cause 
the  act  or  directly  contribute  to  it. 

It  is  said  in  ]\IcGrew  v.  Stone,  o3  Penn.  St.  436,  that  the  general 
rule  is  that  a  man  is  answerable  for  the  consequences  of  a  fault 
which  are  natural  and  probable ;  but  if  his  fault  happen  to  concur 
with  something  extraordinary  and  not  likely  to  be  foreseen,  he  will 
not  be  answerable. 

Bovill,  Ch.  J.,  in  Sharp  /•.  Powell,  L.  R.,  7  C.  P.  253,  uses  this 
language :  "  No  doubt  one  who  commits  a  wrongful  act  is  responsible 
for  the  ordinary  consequences  which  are  likely  to  result  therefrom ; 
but,  generally  speaking,  he  is  not  liable  for  damage  which  is  not  the 
natural  or  ordinary  consequence  of  such  an  act,  unless  it  be  shown 
that  he  knows  or  has  reasonable  means  of  knowing  that  consequences 
not  usually  resulting  from  the  act  are,  by  reason  of  some  existing 
cause,  likely  to  intervene  so  as  to  occasion  damage  to  a  third  per- 
son." The  law  ordinarily  looks  only  to  the  proximate  cause  of  an 
injury,  in  holding  the  wrong-doer  liable  to  an  action;  and  if  the 
damage  is  not  the  probable  consequence  of  a  wrongful  act,  it  is  not 
the  proximate  cause,  so  as  to  make  the  wrong-doer  liable.  See 
Marsden  v.  City  and  County  Assurance  Co.,  L.  R.,  1  C.  P.  232; 
I'.i-flow  V.  Reed,  51  Me.  325;  Railroad  Co.  r.  Reeves,  10  Wall.  17() 
[110].  This  is  the  rule  in  cases  of  tort,  when  tlie  conduct  of  the 
defendant  cannot  be  considered  so  morally  wrong  or  grossly  negli- 
gent as  to  give  a  right  to  vindictive  or  exemplary  damages.  Bald- 
win I'.  U.  S.  Tel.  Co.,  45  N.  Y.  744;  s.  c.  (3  Am.  K.  1G5;  Royle  v. 
P.random,  13  M.  &  W.  7.38. 

The  a.ssault  by  Foster  ui)on  tlie  deceased  could  not  have  been  fore- 
seen, and  it  was  not  the  reasonable  or  probable  consequence  of  the 
ion  of  the  conductor  to  eject  him  from  the  car,  and  upon  ]>rin- 
;m  woll  as  upon  authority  the  injury  was  too  remote  to  cliarge 
•  for  the  damages.  In  Scott  v.  Shoplierd,  2  W.  Bl.  802, 
•  ■  .:i,  P.)  Johns.  381,  and  Vandenbnrgh  r.  Trnax,  4  Den. 

4G-1,  the  injuries  were  held  to  be  the  natural  and  direct  result  of  the 


LIABILITY   FOR   INJURIES.  615 

conduct  of  the  party  charged,  although  he  did  not  intend  the  par- 
ticular injury  which  followed. 

There  was  no  evidence  to  carry  the  case  to  the  jury,  and  the  motion 
for  a  nonsuit  should  have  been  granted. 

The  judgment  must  be  reversed,  and  a  new  trial  granted. 


PITTSBUKGH,  FORT   WAYNE   &  CHICAGO  R. 
CO.    V.    HINDS. 

53  Peun.  St.  512.     1866. 

This  action  was  brought,  December  5th,  1865,  by  Parker  Hinds 
and  Martha  Jane  his  wife,  against  The  Pittsburgh,  Fort  Wayne  & 
Chicago  Railway  Company,  for  injury  to  her  whilst  riding  on  the 
defendant's  train. 

Woodward,  C.  J.  The  action  is  for  an  injury  sustained  by  the 
plaintiff's  wife  whilst  she  was  a  passenger  in  the  cars  of  the  defend- 
ants; and  what  is  peculiar  in  the  case  is  the  fact  that  the  injury  was 
not  occasioned  by  defective  machinery,  or  cars  or  road,  or  by  any- 
thing that  pertained  properly  to  their  business  as  transporters,  but 
was  caused  by  the  fighting  of  passengers  among  themselves. 
Drunken  and  quarrelsome  men  intruded  into  the  ladies'  car  in  great 
numbers  whilst  the  train  stopped  at  Beaver  Station,  and  in  the  dis- 
graceful fight  which  ensued  among  them,  the  plaintiff's  arm  was 
broken,  and  for  this  the  railroad  company  is  sued.  Had  the  suit 
been  against  the  riotous  men  who  did  the  mischief,  the  right  of 
recovery  would  have  been  undoubted,  for  it  is  not  more  the  duty  of 
railroad  companies  to  transport  their  passengers  safely  than  it  is  the 
duty  of  passengers  to  behave  in  a  quiet  and  orderly  manner.  This 
is  a  duty  which  passengers  owe  both  to  the  company  and  to  fellow- 
passengers,  and  when  one  is  injured  by  neglect  of  this  duty  the 
wrong-doer  should  respond  in  damages.  But  in  such  a  case  is  the 
company  liable  ? 

There  is  no  such  privity  between  the  company  and  the  disorderly 
passenger  as  to  make  them  liable  on  the  principle  of  res2wndeat 
superior.  The  only  ground  on  which  they  can  be  charged  is  a  vio- 
lation of  the  contract  they  made  with  the  injured  party.  They 
undertook  to  carry  the  plaintiff  safely,  and  so  negligently  performed 
this  contract  that  she  was  injured.  This  is  the  ground  of  her  action 
—  it  can  rest  upon  no  other.  The  negligence  of  the  company,  or  of 
their  officers  in  charge  of  the  train,  is  the  gist  of  the  action,  and  so 
it  is  laid  in  the  declaration.  And  this  question  of  negligence  was 
submitted  to  the  jury  in  a  manner  of  which  the  company  have  no 
reason  to  complain.     The  only  question  for  us  as  a  Court  of  Error, 


616  CARRIERS   OF   PASSENGERS. 

therefore,  is  whether  the  case  was,  upon  the  whole,  one  that  ouglit 
to  have  been  submitted.  The  manner  of  the  submission  having  been 
unexceptionable,  was  there  error  in  %\ie  fact  of  submission? 

The  learned  judge  reduced  the  case  to  three  propositions.  He 
said  the  plaintiff  claims  to  recover  — 

1st.  Because  the  evidence  shows  that  the  conductor  did  not  do 
his  duty  at  Beaver  Station,  by  allowing  improper  persons  to  get  on 
the  cars. 

2d.  Because  he  allowed  more  persons  than  was  proper  under  the 
circumstances  to  get  on  the  train,  and  to  remain  upon  it. 

3d.  That  he  did  not  do  what  he  could  and  ought  to  have  done  to 
put  a  stop  to  the  fighting  upon  the  train,  which  resulted  in  the 
plaintiff's  injury. 

As  to  the  first  of  the  above  propositions  the  judge  referred  the 
evidence  to  the  jury,  especially  with  a  view  to  the  question  whether 
the  disorderly  character  of  tlie  men  at  Beaver  Station  had  fallen 
under  the  conductor's  observation  so  as  to  induce  a  reasonable  man 
to  apprehend  danger  to  the  safety  of  the  passengers. 

Tlie  evidence  on  this  point  was  conflicting,  but  it  must  be  assumed 
that  the  verdict  has  established  the  conclusion  that  the  conductor 
knew  that  drunken  men  were  getting  into  the  cars.  Let  it  be 
granted  also  as  a  conclusion  of  law  that  a  conductor  is  culpably  neg- 
ligent who  admits  drunken  and  quarrelsome  men  into  a  passenger 
car.     What  tlien? 

The  case  shows  that  an  agricultural  fair  was  in  progress  in  the 
vicinity  of  Beaver  Station;  that  an  excited  crowd  assembled  at  the 
station  rushed  upon  the  cars  in  such  numbers  as  to  defy  the  resist- 
ing p<jwer  at  the  disi)Osal  of  the  conductor;  and  that  the  man  who 
commenced  tlie  fight  sprung  upon  the  platform  of  the  hindmost  car 
after  they  were  in  motion. 

Of  what  consequence,  then,  was  the  fact  that  the  conductor  knew 
these  were  improper  passengers?  It  is  not  the  case  of  a  voluntary 
rt'Cfption  of  sucli  passengers.  If  it  were,  there  Avould  be  great 
torcf  in  the  point,  for  more  improper  conduct  could  scarcely  be 
imagined  in  the  conductor  of  a  train  tlian  voluntarily  to  receive  and 
introduce  among  quiet  passengers,  and  particularly  ladies,  a  mob  of 
drunken  rowdies.  P>ut  the  case  is  tliat  of  a  mob  rushing  with  sucli 
vioh-nce  and  in  such  numbers  upon  the  cars  as  to  overwhelm  the 
coniUictor  as  well  as  the  passengers. 

It  is  not  the  duty  of  railroad  companies  to  furnish  tluMr  trains 
with  a  police  force  adequate  to  such  emergencies.  They  are  bound 
to  furnish  men  i-nough  for  tlie  ordinary  demands  of  transportation, 
'  ire  not  bound  to  anticipate  or  proviih.'  for  sucli  :in  unusual 

•'  '•  as  that  under  consideration. 

When  pxHscngers  purchase  their  tickets  and  take  their  seats  they 

^' '    '  •'  .   train  is  furnished  with  the  jiroper  hands  for  the  con- 

'•  -in,  but  not  with  a  police  force  .sulUcient  to" quell  mobs 


LIABILITY   FOR   INJURIES.  617 

by  the  wayside.  No  such  element  enters  into  the  implied  contract. 
It  is  one  of  the  incidental  risks  which  all  who  travel  must  take  upon 
themselves,  and  it  is  not  reasonable  that  a  passenger  should  throw 
it  upon  the  transporter. 

These  observations  are  equally  applicable  to  the  second  proposi- 
tion. The  conductor  did  not  "■  allow  "  improper  numbers,  no  more 
than  improper  characters,  to  get  upon  the  cars.  He  says  he  took  no 
fare  from  them,  and  in  no  manner  recognized  them  as  passengers. 
To  allow  undue  numbers  to  enter  a  car  is  a  great  wrong,  almost  as 
great  as  knowingly  to  introduce  persons  of  improper  character,  and 
in  a  suitable  case  we  would  not  hesitate  to  chastise  the  practice 
severely.  But  this  is  not  a  case  in  which  the  conductor  had  any 
volition  whatever  in  respect  either  of  numbers  or  characters.  He 
was  simply  overmastered,  and  the  only  ground  upon  which  the 
plaintiff  could  charge  negligence  upon  the  company  would  be  in  not 
furnishing  the  conductor  with  a  counter  force  sufficient  to  repel  the 
intruders.  This  was  not  the  ground  assumed  by  the  plaintiff,  and 
it  would  scarcely  have  been  maintainable  had  it  been  assumed.  _ 

Taking  the  case  as  it  is  presented  in  the  evidence,  we  think  it  was 
error  for  the  court  to  submit  the  cause  to  the  jury  on  these  two 
grounds.  But  upon  the  third  ground  we  think  the  cause  was 
properly  submitted. 

If  the  conductor  did  not  do  all  he  could  to  stop  the  fighting  there 
was  a  negligence.  Whilst  a  conductor  is  not  provided  with  a  force 
sufficient  to  resist  such  a  raid  as  was  made  upon  the  train  in  this 
instance,  he  has,  nevertheless,  large  powers  at  his  disposal,  and  if 
properly  used,  they  are  generally  sufficient  to  preserve  order  within 
the  cars,  and  to  expel  disturbers  of  the  peace.  His  official  character 
and  position  are  a  power.  Then  he  may  stop  the  train  and  call  to 
his  assistance  the  engineer,  the  fireman,  all  the  brakemen,  and  such 
passengers  as  are  willing  to  lend  a  helping  hand,  and  it  must  be  a 
very  formidable  mob,  indeed,  more  formidable  than  we  have  reason 
to  believe  had  obtruded  into  these  cars,  that  can  resist  such  a  force. 
Until  at  least  he  has  put  forth  the  forces  at  his  disposal,  no  con- 
ductor has  a  right  to  abandon  the  scene  of  conflict.  To  keep  his 
train  in  motion  and  busy  himself  with  collecting  fares  in  forward 
cars  whilst  a  general  fight  was  raging  in  the  rearmost  car,  where  the 
lady  passengers  had  been  placed,  was  to  fall  far  short  of  his  duty. 
Nor  did  his  exhortation  to  the  passengers  to  throw  the  fighters  out 
come  up  to  the  demands  of  the  hour.  He  should  have  led  the  way, 
and  no  doubt  passengers  and  hands  would  have  followed  his  lead. 
He  should  have  stopped  the  train,  and  hewed  a  passage  through  the 
intrusive  mass  until  he  had  expelled  the  rioters,  or  have  demon- 
strated, by  an  earnest  experiment,  that  the  undertaking  was 
impossible. 

Such  are  the  impressions  which  this  novel  case  has  made  upon  our 
minds.     We  think  there  was  error  in  submitting  the  case  upon  the 


613  CARRIERS   OF   PASSENGERS. 

first  two  propositions,  but  none  in  submitting  it  on  the  tliird,  ami  if 
the  record  showed  that  the  jury  decided  it  upon  this  latter  ground 
the  judgment  could  be  affirmed.  But,  inasmuch  as  the  error  we  find 
uiMju  the  record  may  have  infected  the  verdict,  the  judgment  must 
be  reversed,  and  a  venire  facias  de  novo  awarded. 


BATTON   V.    SOUTH  AND   NORTH   ALABAMA   K.   CO. 

77  Ala.  591.     18S4. 

SoMERviLLK,  J.  The  action  is  one  of  novel  impression  for  which 
we  nowhere  find  a  precedent.  It  is  a  suit  for  damages  against  a 
common  carrier,  a  railroad  company,  instituted  by  a  passenger  for 
the  alleged  negligence  of  the  carrier  in  failing  to  protect  the  plain- 
tiff, who  was  a  female,  and  a  single  woman  at  the  time  of  bringing 
the  suit,  against  the  nuisance  of  indecent  language  and  conduct  of 
certain  unknown  strangers,  who  proved  disorderly  in  the  presence 
of  the  plaintiff,  while  she  was  seated  in  the  ladies'  waiting-room  of 
a  railroad  station  belonging  to  the  road  line  of  the  defendant  com- 
pany. No  assault  on  the  plaintiff  is  shown,  but  only  vulgar  and 
profane  language,  and  indecent  exposure  of  x)erson,  and  disorderly 
conduct,  on  the  part  of  two  or  three  intruders,  who  are  in  no  wise 
connected  with  the  defendant,  as  servants  or  agents. 

It  may  be  admitted  that  the  plaintiff,  Mrs.  Batton,  wlio,  having 
married  since  suit  was  brought,  unites  with  her  liusband  in  this 
action,  was  a  passenger,  inasmuch  as  she  had  purchased  a  ticket  on 
the  road,  and  had  entered  the  waiting-room  at  the  station,  not  an 
unreasonable  length  of  time  before  the  passenger  train  was  due  at 
Calera,  en  route  for  the  place  of  her  destination,  which  is  shown  to 
be  the  city  of  P.irmingliam.  Wabash  R.  R.  Co.  v.  Rector,  K'l  111. 
2%;  Gordon  v.  Grand  St.  R.  Co.,  40  Barb.  546. 

The  nuisance  complained  of  appears  to  have  been  an  extraordi- 
nary occurrence,  and  one  of  which  no  officer  or  agent  of  the  defend- 
ant company  is  shown  to  liave  been  at  the  time  cognizant,  except  a 
colored  employee,  or  porter,  whose  duties  were  confined  to  looking 
after  the  baggage  of  the  passengers. 

The  question  thus  presented  is,  whether  it  was  tlic  duty  of  tlic  de- 
fendant to  keep  on  hand  a  police  force  at  tlie  station  for  the  pro- 
rr.f>»ir,n  of  jjassengers  against  the  insults  or  disorderly  violence  of 
.  If  not,  they  would  be  guilty  of  no  negligence  wliich  would 
.  ;  ..i-m  liable  in  damages  for  breach  of  duty.     The  broad  j)ropo- 

'     :i  is  urifed  uj)on  us,  that  it  is  the  duty  of  railroad  companies, 

•mmon  carriers,  to  use  the  utmost  care  in  protect- 

iicl  especially  female  passengers,  not  only  from  the 


LIABILITY   FOK    INJURIES.  619 

violence  and  rudeness  of  its  own  officers  and  agents,  but  also  of 
intruders  who  are  strangers.  We  need  not  say  that  there  may  not 
be  certain  circumstances  under  which  the  law  would  impose  such  a 
duty.  There  are  many  well-considered  cases  which  support  this 
view,  but  none  of  them  fail  to  impose  the  qualification,  that  the 
wrong  or  injury  done  the  passenger  by  such  strangers  must  have 
been  of  such  a  character,  and  perpetrated  under  such  circumstances, 
as  that  it  might  reasonably  have  been  anticipated,  or  naturally  ex- 
pected to  occur.  In  Britton  v.  Atlanta  &  Charlotte  Ry.  Co.,  88 
N.  C.  536;  18  Am.  &  Eng.  R.  Cas.  391;  s.  c.  43  Am.  Rep.  748,  the 
rule  is  stated  to  be,  that  "the  carrier  owes  to  the  passenger  the  duty 
of  protecting  him  from  the  violence  and  assaults  of  his  fellow-pas- 
sengers or  intruders,  and  will  be  held  responsible  for  his  own  or  his 
servants'  neglect  in  this  particular,  when,  by  the  exercise  of  proper 
care,  the  acts  of  violence  might  have  been  foreseen  and  prevented, 
and  while  not  required  to  furnish  a  police  force  sufficient  to  over- 
come all  force,  when  unexpectedly  and  suddenly  offered,  it  is  his 
duty  to  provide  ready  help,  sufficient  to  protect  the  passenger  from 
assaults  from  every  quarter  which  might  reasonably  be  expected  to 
occur,  under  the  circumstances  of  the  case  and  the  condition  of  the 
parties."  We  may  assume  this  to  be  the  law  for  the  purpose  of  this 
decision,  as  it  seems  to  be  supported  by  authority.  New  Orleans 
R.  Co.  V.  Burke,  53  Miss.  200;  Pittsburg  R.  Co.  v.  Hinds,  53  Penn. 
St.  512;  Pittsburg  R.  Co.  v.  Pillow,  76  Penn.  St.  510;  Goddard  v. 
Grand  Trunk  R.  Co.,  57  Me.  202;  s.  c.  2  Am.  Rep.  39;  Cooley, 
Torts,  644,  645;  Nieto  v.  Clark,  1  Cliff.  145;  Putnam  v.  Broadway 
R.  Co.,  55  N.  Y.  108;  s.  c.  14  Am.  Rep.  190. 

In  the  case  of  the  Pittsburg  Ry.  Co.  v.  Hinds,  53  Penn.  St.  512, 
the  plaintiff,  who  was  a  passenger,  sued  the  defendant  company  for 
an  injury  received  by  her  at  the  hands  of  a  mob,  who,  defying  the 
power  of  the  conductor,  entered  the  cars  at  a  wayside  station,  and 
commenced  an  affray,  which  resulted  in  an  injury  to  the  plaintiff. 
It  was  held  not  to  be  the  duty  of  the  railroad  companies  to  furnish 
their  trains  with  a  police  force  adequate  to  such  emergencies,  the 
eourt  observing  that  "  they  are  bound  to  furnish  men  enough  for  the 
ordinary  demands  of  transportation,  but  they  are  not  bound  to  anti- 
cipate or  provide  for  such  an  unusual  occurrence  as  that  under  con- 
sideration." "It  is  one  of  the  accidental  risks,"  said  Woodward, 
C.  J.,  "which  all  who  travel  must  take  upon  themselves,  and 
it  is  not  reasonable  that  a  passenger  should  throw  it  upon  the 
transporter." 

It  cannot  be  said  that  this  duty  of  carriers,  to  take  due  care  for 
the  comfort  and  safety  of  pac-sengers,  is  to  be  confined  to  the  man- 
agement of  their  trains  and  cars;  for  the  better  view  is,  that  it 
extends  also  in  a  measure  to  what  has  been  termed  "subsidiary 
arrangements."  2  Rorer,  Railr.  951.  They  are  bound  to  keep  their 
stations  in  proper  repair,  and  sufficiently  lighted,  and  to  provide 


620  CARRIERS  OF  PASSENGERS. 

reasonable  accommodations  for  the  passengers  who  are  invited  and 
expected  to  travel  their  roads.  Knight  v.  Portland  E.  Co. ,  5G  Me. 
234;  McDonald  v.  Chicago  R.  Co.,  26  Iowa,  124.  The  measure  of 
duty  is  admitted  by  all  the  authorities,  however,  not  to  be  so  great 
as  it  is  after  a  passenger  has  boarded  the  train,  for  reasons  of  a 
manifest  nature.  Bait.  &  Ohio  R.  Co.  v.  Schwindling,  101  Penn. 
St.  258;  s.  c.  47  Am.  Rep.  706;  8  Am.  &  Eng.  R.  Cas.  552,  note. 

We  do  not  think  that  there  is  any  duty  to  police  station-houses, 
with  the  view  of  anticipating  violence  to  passengers,  which  there 
are  no  reasonable  grounds  to  expect.  This  is  as  far  as  the  case  re- 
quires us  to  go.  The  liability  of  a  common  carrier,  when  receiving 
a  passenger  at  a  station  for  transportation,  ought  not  to  be  greater 
than  that  of  an  innkeeper,  who  is  never  held  liable  for  trespasses 
committed  ordinarily  by  strangers  upon  the  person  of  his  guests. 
2  Kent,  Com.  593*.  There  is  nothing  tending  to  prove  that  the 
company  had  notice  of  any  facts  which  justified  the  expectation  of 
sucli  a  wanton  and  unusual  outrage  to  passengers.  Their  contract 
of  safe  carriage  imposed  upon  the  company  no  implied  obligation  to 
furnish  a  police  force  for  the  protection  of  passengers  against  such 
insults.  It  is  shown  neither  to  be  commonly  necessary  nor  cus- 
tomary. It  was  a  risk  which  was  incidental  to  one's  presence  any- 
where when  travelling  without  a  protector,  and  it  was  the  plaintiff's 
risk,  not  the  defendant's. 

We  discovered  no  error  in  the  ruling  of  the  court,  and  the  judg- 
ment must  be  affirmed. 


d.    Contributory  Negligence. 

ILLINOIS   CENTRAL   R.    CO.    v.    GREEN. 
81  111.  19.     1875. 

Sheldok,  J.  This  was  an  action  on  the  case,  for  personal  injury 
to  appellee  whilst  a  passenger  on  the  cars  of  appellant. 

The  appellee  took  the  cars  of  appellant  at  Odin,  in  this  State, 
going  south,  at  about  9  o'clock  in  the  evening  of  May  25,  1870.  He 
was  going  to  a  place  about  seven  miles  east  of  Mt.  Vernon,  and  took 
a  ti«<ket  to  Asliley,  which  is  some  five  miles  north  of  Little  Muddy 
I'.ridge.  The  accident  occurred  in  getting  off  the  train  at  tliis  bridge. 
There  was  no  station  there,  but  there  was  a  water-tank,  and  it  was 
a  regular  stopping-place  for  supplying  water  to  the  engines,  and  for 
no  other  purpose. 

Appf'llee's  account  of  tlie  affair  is  substantial!)'' as  follows:  That 
the  conductor  on  the  train  took  his  ticket  between  Odin  and  Cen- 
tral ia;  that  he  objected  to  the  conductor  taking  his  ticket,  because 


LIABILITY    FOR   INJURIES.  621 

appellee  was  a  stranger  on  the  road,  and  wanted  to  know  when  he 
arrived  at  Ashley ;  that  the  conductor  said  to  him,  "  Give  yourself 
no  uneasiness ;  we  always  see  that  our  passengers  are  put  off  at  their 
regular  stations ;  "  that  they  stopped  at  Centralia,  and  remained 
there  awhile ;  that  Centralia  is  fourteen  miles  from  Ashley ;  that  he 
went  to  sleep,  and  remained  so  until  he  heard  the  locomotive  whistle 
and  the  station  called  out  of  Irvington,  which  was  seven  and  one- 
half  miles  from  Ashley;  that  it  was  four  miles  from  Irvington  to 
Richview;  that  Irvington  and  Richview  were  the  only  stations  be- 
tween Centralia  and  Ashley;  that  after  leaving  Irvington  he  went 
to  sleep  again;  that  he  heard  the  whistle,  and  no  station  announced, 
and  then  when  the  cars  travelled  along  again  he  supposed  they  were 
going  down  grade,  which  he  took  to  be  a  grade  from  Ashley  to  Rich- 
view,  and  he  began  to  think  he  was  reaching  his  station,  and  he  in- 
quired if  they  were  coming  to  Ashley,  and  the  response  was,  by 
passengers  on  the  cars,  that  they  had  passed  Ashley  and  were  coming 
to  the  next  station ;  that  when  the  cars  became  about  still  he  stood 
up  in  his  seat  and  looked  back,  and  asked  the  passengers  if  they 
saw  anything  of  the  conductor  on  the  car,  and  they  remarked  they 
did  not;  that  he  felt  that  he  had  been  neglected,  and  went  to  the 
door,  and,  finding  it  unlocked,  turned  around  and  said,  "  Gentlemen, 
this  is  right,  I  suppose,"  and,  being  answered  in  the  affirmative,  he 
then  opened  the  door  and  went  out  on  the  platform;  a  light  was 
shining  on  the  platform,  but  there  was  no  brakeman  there;  that  he 
put  out  his  foot  to  reach  the  platform,  if  he  could,  and  there  being 
no  platform  as  he  expected,  it  gave  him  a  jerk  and  pulled  both  feet 
off  the  car,  and  left  him  hanging  by  one  hand;  his  weight  pulled 
him  loose,  and  he  fell  and  received  the  injury ;  that  it  was  between 
10  and  11  o'clock  at  night  when  he  arrived  at  Little  Muddy  Bridge, 
and  was  quite  dark.  In  falling,  appellee  did  not  strike  anything 
till  he  struck  the  ground  under  the  bridge,  a  distance  of  some  thirty 
feet.  He  said  he  knew  he  was  not  at  Ashley  before  he  went  out  of 
the  car. 

There  was  further  testimony  that  the  train,  at  the  time,  between 
Odin  and  Centralia,  was  under  the  charge  of  Conductor  Gilman. 
Gilman  testified  that  he  could  not  remember  having  any  conversa- 
tion with  any  passenger  on  that  train,  and  says  if  a  passenger  got 
on  at  Odin  with  a  ticket  for  Ashley  he  would  punch  the  ticket  and 
hand  it  back.  The  train  at  Centralia  was  handed  over  by  Gilman 
to  Conductor  Morgan,  who  says  that  the  train  consisted  of  a  sleeping- 
coach,  a  ladies'  car,  a  gentlemen's  car,  a  second-class  and  baggage 
car  combined,  and  an  express  car.  On  leaving  Centralia,  he  says, 
he  went  through  the  train  and  took  up  all  tickets  to  local  points  as 
far  south  as  Du  Quoin.  The  train  was  large,  and  stopped  at  all 
regular  stations.  The  stations  were  called.  That  is  the  brake- 
man's  business,  although  he  did  it  also.  That  night  one  brakeman 
was    stationed    between  the   sleeping-coach  and  ladies'  car.      He 


C22  CARRIERS   OF   PASSENGERS. 

would  call  the  stations  on  both  of  these  cars.  The  other  brakeman 
was  between  the  baggage  car  and  the  next  car  to  it,  —  the  geutle- 
meu's  car.  Thus  located,  all  the  brakes  of  the  four  cars  were  under 
the  control  of  the  two  brakemen.  The  train  stopped  at  Little  Muddy 
Creek  that  night  to  take  water.  The  bridge  is  for  trains  to  pass  on. 
The  train  stands  partly  on  the  bridge  while  they  take  water.  No 
station  there,  and  no  platform.  Bridge  never  used  except  for  cars. 
No  light  there  that  night  when  the  train  stopped.  Several  passen- 
gers got  off  at  Ashley  that  night,  among  them  women  and  children, 
and  were  attended  to  by  the  conductor.  That  the  general  custom  of 
railroads  is  to  notify  passengers  of  the  stations  by  calling  out  the 
naiufs  of  the  stations  as  they  are  reached. 

Thomas  Winters  was  the  brakeman  stationed  that  night  between 
the  baggage  car  and  the  gentlemen's  car.  He  testifies  that  he  called 
the  station  as  the  train  arrived  at  Ashley  on  the  night  of  the  acci- 
dent. He  remembers  it  from  the  fact  that  Morgan,  the  conductor, 
the  next  day  asked  him  if  he  had  called  that  station,  and  he  then 
remembered  that  he  had. 

A  Mr.  Turlay  of  Centralia,  wlio  was  on  the  train,  states  that  he 
saw  a  passenger  get  up  and  walk  out  of  the  rear  door  of  the  car  at 
Little  Muddy  Bridge,  and  he  supposed  that  he  was  going  into  the 
ladies'  car  on  account  of  the  annoyance  occasioned  to  him  by  the 
conversation  of  a  party  of  four  persons  who  were  sitting  opposite  to 
him,  Mr.  Turlay  being  one  of  the  number;  that  the  man  never  asked 
any  question  of  any  one,  so  far  as  he  heard. 

We  are  of  opinion  the  evidence  in  this  case  discloses  no  cause  of 
action. 

It  is  said  there  was  negligence  in  carrying  the  appellee  past  his 
station. 

Conceding  all  that  is  claimed  in  tliat  respect,  appellee  would  not, 
for  such  cause,  be  justified  in  jumping  oif  the  train,  or  otherwise 
needlessly  exposing  himself  to  injury,  and  then  claim  the  liability 
of  appellant  for  the  injury  he  might  receive  in  consequence.  The 
injury  here  received  had  no  proper  connection  with  being  carried 
pa.st  a  destined  station,  and  for  such  act  appellant  cannot  be  held 
responsible  for  any  such  remote  and  unnatural  consequence  thereof 
as  the  injury  here  sued  for. 

It  is  tiien  insisted  that  the  stoppage  of  a  passenger  car  at  such  a 
plarjf  as  the  one  in  question,  without  some  precaution  to  notify  pas- 
sengers of  danger,  was  an  act  of  gross  negligence. 

Hut  why  notify  passengers  of  danger?  It  was  a  stopping-i)lace 
for  getting  water,  not  for  passengers.  The  bridge  was  intended 
««ilc-ly  for  the  passage  of  cars,  not  for  the  alighting  of  passengers 
upon  it.  The  place  f<jr  tlie  passenger  here  was  inside,  not  outside 
of  tho  oar.  The  train  and  the  appellee  in  his  j)roper  place  inside 
the  i-.ir  were  as  safe  upon  the  bridge  as  they  would  have  been  any- 
whcrt-  away  from  it.     The  fact  that  the  cars  were  ujioii  the  bridge 


LIABILITY   FOR    INJURIES.  623 

involved  no  danger  or  risk  to  the  passenger,  so  long  as  he  remained 
in  his  right  place,  withiu  the  car. 

There  was  a  right  to  presume  that  the  passenger  would  keep  in 
his  place  inside  the  car.  It  was  not  to  be  anticipated  that  he  would 
be  getting  off  the  car  where  he  had  no  business  to  do  so,  and  that 
there  was  any  necessity  for  providing  against  it. 

It  cannot  be  said  that  there  was  any  invitation  to  appellee  to  alight 
where  he  did.  The  mere  stopping  of  the  train  is  not  to  be  so 
regarded. 

It  may  be  inferred,  from  appellee's  testimony,  that  he  heard  the 
whistle  at  the  bridge.  If  so,  it  was  not  a  signal  of  approach  to  a 
station.  The  testimony  of  the  conductor  on  that  head  was :  "  They 
[brakemenj  know  where  the  tank  is,  and  the  engineer  does  not 
whistle  in  coming  to  it,  with  the  exception  that,  once  in  a  while, 
when  the  engineer  sees  the  train  is  going  by  the  tank,  he  will  then 
give  a  little  toot  —  whistle  down  brakes;  don't  know  whether  he 
whistled  that  night  or  not.  There  is  a  fixed  whistle  for  down 
brakes,  one  short  whistle,  and  is  used  on  all  portions  of  the  line. 
They  use  the  same  whistle  when  they  want  to  stop,  except  at  regu- 
lar stations  they  whistle  a  long  whistle,  and  don't  whistle  any  stop 
whistle  at  all.  This  short  toot  is  used  to  apply  the  brakes  between 
stations,  where  there  is  danger,  when  you  want  the  train  to  stop  at 
an  irregular  place  where  there  is  danger,  or  anything  on  the  track, 
but  in  stopping  regularly  we  don't  use  that  at  all." 

Appellee  testified  that  he  was  accustomed  to  travel  on  railways. 
He  was  not  justified  in  taking  the  whistle  as  notice  of  approaching 
a  station.  Any  encouragement  to  get  off,  which,  according  to  his 
testimony,  he  might  have  received  from  any  passenger  of  course  is 
not  to  be  imputed  to  the  company  as  in  any  way  its  act.  Appellee 
getting  off  the  car  where  he  did  was  an  entirely  uncalled  for  and 
voluntary  act  of  his  own,  uninvited  and  unencouraged  by  any  one  in 
the  management  of  the  train,  and  he  took  the  risk  of  the  conse- 
quence. The  act  of  thus  getting  off  in  the  darkness  of  night,  at  an 
unknown  and  dangerous  place,  was  one  of  gross  carelessness, 
whereby  appellee  exposed  himself  to  the  injury  which  he  received. 
The  harm  which  one  brings  upon  himself  he  is  to  be  considered  as 
not  having  received.  So  far  as  his  relations  to  others  are  concerned, 
such  harm  is  uncaused.  Chicago  &  Alton  Railroad  Company  v. 
Becker,  76  111.  31. 

Had  appellee  used  ordinary  prudence,  the  casualty  would  not  have 
happened.  Having  failed  in  this,  the  company  ought  not  to  be 
liable.  Chicago  &  Northwestern  Eailway  Co.  v.  Sweeney,  52  111. 
331.  And  see  Chicago  &  Alton  Railroad  Co.  v.  Gretzner,  46  id.  75; 
Chicago,  Burlington  &  Quincy  Railroad  Co,  v.  Van  Patten,  64  id. 
511;  Chicago  Rock  Island  &  Pacific  Railroad  Co.  y.  Bell,  70  id. 
103;  Todd  v.  Old  Colony,  etc..  Railroad  Co.,  3  Allen,  18;  Louis- 
ville and  Nashville  Railroad  Co.  v.  Sickings,  5  Bush,  1;  Pittsburg 


624  CARRIERS  OF  PASSENGERS. 

&  Connellsville  Railroad  Co.  i'.  Andrews,  39  Md.  329;  2  Eedf.  Am. 
Railway  Cases,  552,  in  note  to  McClurg's  case;  The  Indianapolis, 
etc.,  Railroad  Co.  r.  Rutherford,  29  Ind.  82. 

It  is  a  requisite  to  the  liability  of  a  railway  company,  as  a  pas- 
senger carrier,  that  the  passenger  should  not  have  been  guilty  of 
any  want  of  ordinaiy  care  and  prudence  which  directly  contributed 
to  the  injury.     2  Redfield  on  Railways,  224,  236. 

The  judgment  must  be  reversed,  there  being  no  cause  of  action 
under  the  evidence. 


MORRISON   V.   ERIE   R.    CO. 
56  N.  Y.  302.     1874. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  in  favor  of  plaintiff,  entered  upon 
an  order  denying  motion  for  a  new  trial  and  directing  judgment  on 
a  verdict. 

This  action  was  brought  to  recover  damages  for  injuries  sustained 
by  plaintiff  while  leaving  a  car  on  defendant's  road  at  Niagara 
Falls. 

Plaintiff  was  twelve  years  of  age,  and  was  in  the  company  and 
care  of  her  parents.  They  were  passengers  on  defendant's  car  from 
Buffalo  to  Niagara  Falls.  Before  the  train  reached  the  latter 
station,  the  conductor  called  out  the  name  of  the  station.  The  car 
stopped,  plaintiff  and  lier  parents  arose  from  their  seats,  gathered 
up  their  packages  and  stepped  out  into  the  passage- way  between  the 
seats,  but  before  they  had  passed  out  of  the  car  the  train  started 
and  moved  slowly  by  the  station.  The  party  knew  the  train  was 
in  motion  while  yet  inside  the  ear;  tliey  passed  out  upon  the  plat- 
form of  the  car.  The  train  had  passed  beyond  the  stationary  plat- 
form of  the  depot.  It  was  evening  and  was  dark.  Mr.  Morrison 
took  plaintiff  under  his  right  arm,  and,  taking  hold  of  the  iron  rod 
at  the  rear  end  of  tlie  platform  with  his  left  liand,  stepped  from  the 
car;  he  fell,  and  jdaiiitiff's  foot  was  crushed  by  tlie  car  wheels. 
Further  facts  appear  in  the  opinion. 

At  the  close  of  jjlaintiff's  evidence  and  also  of  the  entire  evidence 
dftfcndant's  counsel  moved  for  a  nonsuit,  which  was  dcnii'd,  and  de- 
fendant excejjted. 

The  court  instructed  the  jury  among  other  things,  that  the  ])lain- 
tiff  had  a  rifjht  to  leave  if  the  cars  were  under  ;notion,  and  he  knew 
it,  if  he  exercised  ordinary  care  under  the  circumstances  in  doing  so. 
The  dff«'ndant's  counsel  excepted  to  this  instruftion. 

The  dffcndantVs  counsel  requested  tlie  court  to  instrufi  tlir  jm y, 
that  if  they,   from  the  evidence,    found  the   father  liad  tlie  (tare, 


LIABILITY   FOK   INJURIES.  625 

custody,  and  control  of  the  plaintiff,  as  his  child,  and  the  cars  were 
under  motion,  and  he  knew  it  when  he  took  her  under  his  arm  to  go 
out  of  the  car,  and  when  the  cars  were  thus  under  motion,  his  duty 
was  not  to  undertake  to  get  off.  The  court  declined  except  as  quali- 
fied, that  the  father  was  bound  to  use  ordinary  care  in  removing 
her  from  the  train.     Defendant's  counsel  excepted. 

Defendant's  counsel  further  requested  the  court  to  charge,  that  if 
the  jury  found  that  the  father,  under  the  circumstances  stated  in  the 
last  request,  undertook  to  get  off  from  the  cars  while  they  were  to 
his  knowledge  under  motion,  and  his  so  doing  contributed  to  the 
injmy,  plaintiff  cannot  recover.  The  court  declined  so  to  charge,  and 
plaintiff  excepted. 

The  jury  found  a  verdict  for  plaintiff.  Exceptions  were  ordered 
to  be  heard  at  first  instance  at  General  Term. 

FoLGER,  J.  The  plaintiff  was  a  paying  passenger  upon  the  cars 
of  the  defendant,  and  it  owed  her  the  duty  of  taking  her  up,  carry- 
ing her,  and  setting  her  down  safely,  so  far  as  it  was  concerned 
therein. 

There  was  testimony  in  the  case,  at  every  stage  of  the  trial,  upon 
which  the  jury  had  a  right  to  rely,  and  relying  upon  which  they 
had  a  right  to  find,  that  the  train  on  which  she  was,  did  not  stop  at 
the  station,  at  which  she  was  to  be  set  down,  long  enough  for  her  to 
alight  with  ease  and  safety.  Hence,  the  plaintiff  made  out  so 
much  of  her  case  as  consisted  in  showing  that  the  defendant  was 
negligent  in  its  duty  toward  her. 

There  are  undisputed  facts  in  the  case,  however,  which  raise  other 
important  questions. 

As  the  train  approached  the  station  at  which  she  was  to  be  set 
down,  the  conductor  called  out  the  name  of  it  and  then  the  train 
stopped.  This  was  a  notice  and  an  invitation  for  her  to  get  out. 
It  was  further  noticed  that  it  was  time  to  alight,  and  that  time 
enough  would  be  given  therefor.  The  plaintiff  and  her  parents ,  in 
whose  care  she  was,  prepared  to  do  so,  gathered  their  packages,  and 
were  on  their  feet  in  the  passage-way  between  the  seats.  Up  to 
this  time  it  cannot  be  said  that  either  part}^  was  lacking  in  due  care. 
Before  they  got  outside  of  the  car,  however,  the  train  started 
sharply,  and  moved  slowly  by  the  station.  In  this,  as  before  said, 
was  the  negligence  of  the  defendant.  The  plaintiff,  her  father  and 
her  mother,  while  they  were  yet  inside  the  car,  knew  that  the  train 
was  moving;  as  she  was  of  tender  years  and  immediately  under 
their  care  and  control,  their  acts  and  conduct  were  her  acts  and  con- 
duct, and  she  is  to  be  judged  thereby.  The  train  still  moving,  they 
passed  out  of  the  car  on  to  its  platform.  It  was  evening  and  was 
dark.  The  train  had  passed  away  from  the  stationary  platform, 
built  at  the  side  of  the  track,  and  on  a  level,  or  nearly  so,  with  the 
platform  of  the  car.  To  reach  the  earth  from  the  latter,  a  person 
must  go  down  from   off  the   steps  thereof,    still  lower,   on  to  the 

40 


626  CARRIERS   OF   PASSENGERS. 

ground.  He  must  for  a  space  of  time  be  in  the  air,  without  support 
either  by  hand  or  foot;  he  must,  in  fact,  fall  or  drop  from  the  uiov- 
in<'  train  to  the  ground,  with  the  momentum  downward  of  his 
weight,  and  the  momentum  forward,  got  from  the  motion  of  the  car, 
these  two  not  in  accord.  This  the  father  of  the  plaintiff  undertook 
to  do;  not  only  with  his  own  weight  making  the  descent  alone,  but 
holding  the  body  of  the  plaintiff  under  one  of  his  arms,  having  but 
the  other  to  sustain  and  guide  himself,  thus  laden;  holding  fast 
with  his  other  hand  to  the  railing  of  the  car.  He  did  this  aware 
that  there  was  danger  in  it.  It  was  because  he  knew  that  it  was 
dangerous  that  he  would  not  let  the  plaintiff  undertake  it  alone,  by 
reason  of  the  train  being  in  motion.  He  was  not  directed  nor  ad- 
vised to  attempt  thus  to  alight;  on  the  contrary,  he  was  told  not  to; 
though  he  had  then  got  so  far  in  it  as  to  have  lost  his  balance,  to  be 
unable  to  recover  himself  and  retake  his  steps.  He  fell,  still  hold- 
ing the  plaintiff,  and  she  was  injured.  Upon  this  state  of  facts,  the 
defendant,  by  motion  for  nonsuit,  and  by  exceptions  to  the  charge 
given  and  to  the  refusals  to  charge,  presents  the  question  whether 
the  plaintiff  is  chargeable  with  negligence  contributory  to  the  acci- 
dent. The  learned  counsel  for  the  defendant  claims  that  the  facts 
are  such,  as  that  as  a  matter  of  law,  contributory  negligence  is 
shown,  and  that  there  was  not  a  question  of  fact  for  the  jury.  He 
insisted  that  as  a  matter  of  law,  it  is  always  negligence  and  want  of 
ordinary  care  for  a  person  to  attempt  to  get  from  off'  a  car  when  it 
is  in  m(jtion.  Were  I  disposed  to  accede  to  this  proposition  upon 
principle,  which  I  am  not,  I  should  feel  myself  precluded  by  prior 
decisions  of  this  court,  and  influenced  to  a  contrary  conclusion  by 
those  of  other  courts.  Filer  v.  N.  Y.  C.  R.  R.,  49  K  Y.  47  [629], 
and  cases  cited;  Penn.  R.  R.  Co.  v.  Kilgore,  32  Penn.  St.  292.  The 
rule  establislied,  and  as  I  tliink  the  true  one  is,  that  all  the  circum- 
stances of  each  case  must  be  considered,  in  determining  whether  in 
that  case,  there  was  contributory  negligence  or  want  of  ordinary 
care,  and  that  it  is  not  sound  to  select  one  prominent  and  important 
fact,  wliich  may  occur  in  many  cases,  and  to  say,  that  being  iirosent, 
there  must,  as  matter  of  law,  have  been  contributory  negligence. 
The  circumstances  vary  infinitely,  and  always  affect  and  more  or 
less  control  each  other.  Each  must  be  duly  weighed,  and  relatively 
considered,  before  the  weiglit  to  be  given  to  it  is  known.  This  is 
not  to  say,  liowever,  that  in  every  case  it  is  a  question  for  the  jury 
of  fact,  or  of  fact  and  of  law  to  be  given  to  the  jury  witli  instruc- 
tions. Wliere  the  facts  are  undisputed,  the  question  of  contributory 
negligence  may  become  one  of  law,  as  the  other  questions  which 
ari.s»;  iipojj  a  trial,  and  are  sulnnittcd  to  tlie  decisions  of  tlie  court  on 
a  iii(»tion  for  a  nonsuit  or  otherwise.  In  tliis  case  tliere  are  certain 
farts  as  to  wliiclj  there  is  and  can  be  no  dispute;  and  they  are  of 
such  character  and  weight  tliat  it  is  for  the  court  to  say  wlicther 
there  is  room  for  doubt  or  query,  but  that  there  was  a  complete 


LIABILITY  FOR   INJURIES.  627 

absence  of  that  care  and  prudence,  without  which,  in  the  direction 
of  conduct,  there  is  negligence.     I  am  aware  that  it  has  been  held 
more  than  once  in  this  court,  and  more  than  once  in  other  courts, 
that  though  an  injury  has  been  received  by  a  passenger  in  alighting 
or  passing  from  a  car  while  it  is  in  motion,  yet  it  was  a  question 
for  the  jury  to  answer,  whether  there  was  a  lack  of  ordinary  care 
under  all  of  the  circumstances.     Mclntyre  v.  N.  Y.  C.  E.  K.,  37 
N".  Y.  287;  49  id.  supra,  and  cases  cited.     In  those  cases,  the  pas- 
senger was  not  left  alone,  to  his  own  judgment  and  discretion.     A 
direction  or  notification  of  some  employee  of  the  defendant,  having 
authority  or  place  upon  the  train,  came  in  to  influence  the  mind  of 
the  passenger,  to  remove  apprehension  of  danger,  to  induce  a  sense 
of  safety  in  action,  and  a  failure  to  exercise  the  prudence  which  the 
occasion  demanded;  and  it  was  as  if  the  defendant  had  assumed  the 
control  and  responsibility  of  the  act;  and  so,  there  being  no  respon- 
sible volition  by  the  passenger,  there  was  no  damnifying  negligence. 
And  there  it  was  under  the  pressure  of  these  affecting  and  control- 
ling circumstances  in  the  case,   that  the  question  was  left  to  the 
jury  to  determine  whether  there  was  a  failure  to  exert  ordinary  care 
and  prudence.     So  in  Foy  v.  L.  B.  &  So.  C.  E.  Co.,  18  Com.  Ben. 
[N.S.],  225,  the  porter  of  the  defendant  directed  the  alighting  of 
the  passenger  where  there  was  no  platform.     And  that  stress  is  to 
be  laid  upon  this  circumstance  is  shown  by  the  judgment  in  Siner 
V.  G.  W.  E.  Co.,  L.  E.  [3  Exch.],  150;  affirmed  [Exch.  Ch.],  4  id. 
117.     Though  in  Penn.  E.   E.  Co.  v.  Kilgore,  32  Penn.    St.   232, 
there  was  no  such  fact,  yet  there  were  facts  which  made  the  case 
quite  unlike  that  here,  and  so  characterized  it  as  to  render  it  appro- 
priate to  commit  it  to  a  jury.     There,  the  passenger  was  a  woman 
in  feeble  health,  in  a  strange  place,  with  her  three  young  children 
in  her  charge.     At  dusk  the  train  had  stopped  at  the  station  to 
which  she  had  taken  passage.     She  and  her  children  had  left  their 
seats  and  passed  out  while  the  train  was  at  a  stand-still;  two  of  the 
young  folks  had  passed  off;  she  was  on  the  steps  of  the  car  with  the 
other;  by  the  starting  of  the  cars,  that  one  was  thrown  prone  upon 
the  station  platform ;  at  the  instant  she  leaped  upon  that  platform 
and  was  hurt.     It  was  a  matter  of  impulse,  not  of  thought,  discre- 
tion, and  prudence,  and  plainly  quite  different  from  that  in  the  case 
at  hand.     It  is  significant,  too,  that  in  the  charge  in  that  case  ex- 
ceptions to  which  brought  up  the  case  for  review,  the  court  said : 
"  If  the  plaintiff  had  been  in  the  car,  or  on  the  platform,  when  the 
train  had  started  or  was  in  motion,  and  was  in  a  situation  to  choose 
between  getting  off  or  remaining  on,  and  with  a  full  consciousness 
of  her  danger,  with  foolish  rashness,  persisted  in  leaving  the  car  in 
defiance  of  warning  to  the  contrary,  we  would  be  compelled  to  tell 
you,  as  matter  of  law,  that  she  could  not  recover."     It  is  plain  that 
there  was  quite  a  different  state  of  facts  in  this  case  from  that  in 
Kilgore's  case  and  other  cases  above  cited.     Here,  the  plaintiff",  or 


C28  CARRIERS   OF   PASSENGERS. 

which  is  the  same  thing,  her  father,  was  not  influenced  by  the  com- 
mand or  direction  of  an  employee  of  superior  experience  and  prac- 
tical judgment;  he  was  not  obliged  to  choose  one  of  two  courses, 
one  of  which  might  endanger  himself  or  the  plaintiff,  and  the  other 
might  expose  others  in  his  charge  to  want  of  care  and  protection; 
nor  was  he  obliged  to  choose  suddenly;  he  had  time  for  thought, 
within  the  c;\r  and  on  the  way  out  to  the  steps  of  it;  he  knew  that 
the  train  was  in  motion  before  he  left  the  inside  of  the  car,  or 
essayed  to  get  down ;  he  not  only  knew  that,  but  was  then  in  full 
consciousness  of  the  fact  that  there  was  danger  in  the  attempt,  for 
he  would  not  suffer  the  child  to  undertake  it  by  herself;  and  on  the 
other  hand,  tliat  there  was  at  the  most  no  danger,  but  only  incon- 
venience in  remaining  on  the  train;  knowing  that  there  was  danger 
in  the  attempt  by  one  person,  he  doubled  it  or  added  to  it,  by  load- 
ing himself  with  the  weight  of  his  child,  and  in  such  wise  as  to 
deprive  himself  of  the  use,  in  the  attempt,  of  one  arm  and  one  hand; 
he  did  not  make  the  attempt  when  he  had  a  structure  to  step  out 
upon,  level  with  that  which  he  must  leave,  but,  when  obliged,  as  he 
knew,  to  let  himself  fall  to  the  ground,  through  some  space,  with- 
out support  from  anything  during  the  lapse,  and  with  no  guidance 
save  the  momentum  of  the  drop  and  of  that  got  from  the  forward 
motion  of  the  car,  —  forces  acting  at  variance  from  each  other,  and 
neither  tending  to  steadiness  and  uprightness  of  position.  All  of 
this  was  no  result  of  impulse,  or  choice  suddenly  compelled.  There 
was  time  for  prudent  choice,  and  correct  apprehension  of  all  the 
circumstances. 

Now,  it  is  certain  that  but  for  the  attempt  of  the  plaintiff's 
father  then  to  get  down  from  out  the  car  she  would  not  have  been 
injured  as  she  was.  His  act,  which  was  her  act,  in  thus  attem})t- 
ing,  did  contribute  to  the  accident.  Was  it  a  faulty  act  in  him? 
If  it  was,  then  it  was  such  contributory  negligence  as  relieves  the 
defendant  from  liability  to  her,  for  their  negligence  toward  her. 
It  was  faulty  in  him,  if  it  was  such  an  act  as  would  not  have  been 
done  by  one  exercising  the  care  for  his  person,  which  men  of  ordi- 
nary care  and  ]jrudence  for  their  safety  and  well-l)eing  are  accus- 
t<jnit'd  to  empluy  under  the  same  or  like  circumstances.  Can  it  be 
said  that  a  person  of  ordinary  prudence  and  care  would  liave  swung 
himself  from  a  car  in  motion  down  to  the  ground  in  the  dark,  laden 
with  the  weight  of  a  child  twelve  years  old,  having  but  one  hand 
and  oiif  arm  to  aid  himself  with,  when  there  was  no  otlier  danger 
to  Ije  avoided  by  meeting  this,  and  no  incentive  to  tlie  act,  otlier 
than  the  inconvenience  of  being  carried  by  his  jjlace  of  abode,  md 
with  a  full  apprehension  of  the  danger  he  was  al)out  to  run";'  I 
think  not.  And  I  am  of  the  opinion  that  it  is  so  cdear  tliat  the 
^  the  court  sIjouM  liavc  given  the  answer  without  falling  in 
1  of  a  jury.  Lucas  v.  N.  V..  it  T.  K.  K.  Co.,  G  CJray,  (M,  is, 
»n  principle,  in  »upiK>rt  of  tlie   foregoing;  as  is  also    I'liillips   r. 


LIABILITY   FOR   INJUKIES.  629 

Rens.  &  Sar.  R.  E.  Co.,  49  N.  Y.  177.  And  see  also  Nichols  v. 
Sixth  Av.  R.  R.  Co.,  38  N.  Y.  131. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with 
costs  to  abide  the  event. 

All  concur  except  Church,  Ch.  J.,  and  Andrews,  J.,  dissenting. 


EILER   V.   NEW  YORK  CENTRAL  R.    CO. 
59  N.  Y.  351.     1874. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  the  fourth  judicial  department,  affirming  a  judgment  in 
favor  of  plaintiff,  entered  upon  a  verdict. 

This  action  was  brought  to  recover  damages  for  injuries  received 
by  plaintiff,  while  getting  off  a  train  on  defendant's  road,  alleged 
to  have  been  occasioned  by  defendant's  negligence. 

Plaintiff  took  passage  at  Rochester  for  Fort  Plain,  where  she 
arrived  about  3  a.  m.  The  brakeman  called  out  the  name  of  the 
station;  the  cars  moved  slowly,  but  did  not  stop.  Plaintiff  went 
out  on  the  platform,  and,  while  waiting,  some  one  told  her  that  she 
had  better  get  off,  as  the  train  was  not  going  to  halt  any  more.  As 
to  who  this  person  was,  the  evidence  was  conflicting,  plaintiff's 
evidence  tending  to  show  it  was  a  brakeman,  defendant's,  that  it 
was  not  a  person  employed  on  the  train  but  a  passenger.  Plaintiff 
attempted  to  alight,  her  clothing  caught  on  the  step,  and  she  was 
thrown  down  and  injured.  In  regard  to  the  advice  or  direction 
given  to  her,  the  court  charged  that  he  did  not  see  that  it  would 
make  any  difference  whether  it  was  a  brakeman  or  any  other  person, 
but  the  question  was:  "Was  it  prudent  for  her,  acting  under  the 
advice  thus  given  to  her  by  anybody,  to  alight  from  that  train?" 
To  which  defendant's  counsel  duly  excepted. 

Grover,  J.  This  case  has  been  before  this  court  upon  a  previous 
occasion,  when  the  questions  presented  were  nearly  all  determined. 
49  N.  Y.  47;  see,  also,  William  Filer  v.  N.  Y.  C.  R.  R.  Co.,  id. 
42.  Some  of  the  questions  were,  upon  the  present  trial,  presented 
in  an  aspect  somewhat  different,  but  not  so  varying  the  legal  prin- 
ciple, applicable  thereto,  as  to  require  further  discussion.  Upon 
the  last  trial,  an  additional  question  was  presented.  The  evidence 
showed  that  the  injury  sustained  by  the  plaintiff  was  caused  by  her 
getting  off  the  cars  while  in  motion,  and  it  was  insisted,  by  the 
counsel  for  the  defendant,  that  this  was  contributory  negligence, 
on  her  part,  such  as  to  preclude  her  recovery.  To  meet  this  objec- 
tion, the  plaintiff  gave  evidence  tending  to  show  that  she  was  told 
by  the  brakemau  to  get  off  where  and  when  she  did,  but  tlie  evi- 


530  CARRIERS   OF   PASSENGERS. 

dence  was  conflicting  as  to  whether  this  direction  to  her  was  given 
by  the  brakeman  or  some  other  person  having  no  connection  with 
the  management  of  the  train  or  anything  to  do  with  it  except  as 
passengers.  Upon  this  point  the  judge  charged  the  jury,  in  sub- 
stance, that  it  was  immaterial,  and  did  not  make  any  difference 
whether  such  direction  was  given  by  the  brakeman  or  any  other 
j>erson;  that  it  was  for  them  to  determine  whether  she  was  guilty 
of  negligence  in  getting  off  after  having  received  such  direction 
from  any  one.  I  think  this  was  error.  The  employees  upon  a 
train,  including  brakemen,  are  in  the  line  of  their  duty  in  assisting 
passengers  in  getting  on  and  off  the  train,  and  in  directing  them  in 
procuring  seats.  Passengers  rightly  assume  that  these  persons  are 
familiar  with  all  the  movements  of  the  train,  and  know  whether 
they  can,  under  the  particular  circumstances,  get  on  or  off,  or  move 
upon  the  train  with  safety.  When  the  conductor  or  brakeman 
directs  a  passenger  to  get  off  the  train,  although  in  motion,  such 
passenger  will  naturally  assume  that  he  knows  it  is  entirely  safe, 
or  he  would  not  give  the  direction.  See  cases  cited  in  opinions  in 
above  cases.  Not  so  in  case  the  direction  is  given  by  one  having 
no  connection  with  the  train,  other  than  a  passenger.  As  to  such 
a  person,  there  is  no  reason  to  suppose  that  he  knows  anything 
more  about  whether  it  is  safe  to  follow  his  direction  than  the  one 
to  whom  it  is  given. 

For  the  above  error  in  the  charge,  the  judgment  must  be  reversed, 
and  a  new  trial  ordered,  costs  to  abide  event. 


BUEL  V.   NEW  YORK   CENTRAL  R.    CO. 
31  N.  Y.  311.     1805. 

Appeal  from  judgment  of  the  Supreme  Court.  The  action  was  to 
:■  -.('r  damages  for  injuries  received  by  the  plaintiff,  while  a  pas- 
■r  on  the  defendant's  railroad,  in  October,  1^57,  by  a  collision 
of  trains  on  the  route  between  Rochester  and  liatavia. 

The  cause  was  tried  at  the  Genesee  Circuit,  in  November,  1858, 
before  Mr.  Ju.stice  Davis  and  a  jury.  It  appeared  from  the  evi- 
i1  'ic.-  that  -III  the  evening  of  the  0th  of  October,  LSHT,  the  plaintiff 
■.  1,  a  jp.i>MMi^'er  on  a  train  of  cars  of  tlie  defendant's  passing  west 
from  Itochester  through  liergen,  between  Rochester  and  liatavia. 
He  or-cupied  a  seat  in  the  second  [)assenger  car,  near  the  contrf.  and 
upon  the  south  side.  Upon  reaclung  Bergen  the  train  was  run  on 
a  K'.viU'li,  where  it  remained  fifteen  minutos  waiting  for  a  train  due 
th«rf  from  the  west.  It  tlion  started  wfst,  and  liad  jjroceeded  but  a 
Bhort  distance  when  the  train  from  the  west  was  discovered  coming 


LIABILITY   FOR   INJURIES.  631 

at  the  speed  of  about  twenty-five  miles  an  hour.  The  engine  at- 
tached to  the  train  on  Avhich  the  plaintiff  was,  was  reversed,  but 
not  in  time  to  enable  it  to  be  backed  wholly  down  on  the  switch, 
and  avoid  a  collision.  The  collision  occurred  driving  the  cars  of 
one  of  the  trains  from  forty  to  sixty  rods  over  the  ties,  killing  at 
least  one  man  on  the  down  train,  jamming  up  the  train  going  west, 
and  breaking  off  some  of  the  platforms  of  its  cars. 

The  plaintiff  had  remained  in  his  seat  all  the  time  the  train  was 
at  Bergen.  He  sat  facing  the  engine,  by  a  window  that  was  open. 
When  his  train  stopped,  and  commenced  backing  down,  he  looked 
out  of  the  window  and  saw  the  approaching  train,  and  men  jumping 
from  the  cars.  He  left  his  seat,  and  hurried  to  the  forward  door  of 
the  car  as  fast  as  he  could  to  escape.  As  he  opened  the  door,  and 
set  his  right  foot  on  the  platform,  the  collision  occurred.  He  was 
thrown  forward  and  partially  stunned ;  he  tried  to  get  up,  but  could 
not  use  his  right  leg;  it  was  broken  in  four  places  below  the  knee, 
and  his  ankle  and  knee  were  bruised.  ..... 

The  car  in  which  the  plaintiff  was  seated  at  the  time  of  the  acci- 
dent was  about  two-thirds  full  of  passengers.  There  seems  not  to 
have  been  an  unusual  commotion  in  this  car  at  the  time  of  the  col- 
lision, and  those  who  remained  in  their  seats  were  uninjured. 

Wright,  J.  It  is  not  now  claimed,  as  it  was  on  the  motion  for  a 
nonsuit,  that  the  evidence  failed  to  show  negligence  on  the  part  of 
the  defendants.  Indeed,  a  grosser  case  of  careless  conduct  is  seldom 
presented  to  a  court  and  jury.  The  train  in  which  the  plaintiff  was 
a  passenger  had  been  run  on  the  switch  at  Bergen,  to  await  a  train 
from  the  west  which  was  due  there.  After  waiting  some  fifteen 
minutes  the  train  was  irregularly  started,  the  conductor  getting  on 
the  engine.  It  was  a  dark  and  foggy  night.  The  train  had  pro- 
ceeded some  forty  rods  when  the  western  train  was  seen  approach- 
ing at  a  rate  of  speed  of  about  twenty-five  miles  to  the  hour.  An 
effort  was  made,  by  breaking  up  and  reversing  the  engine,  to  get 
the  up  train  back  on  the  switch,  but  before  this  could  be  effected  a 
collision  of  the  trains  occurred.  The  case  then  was,  that,  on  a  dark 
and  foggy  night,  trains  of  the  defendants  running  in  opposite  direc- 
tions, out  of  time,  and  one  of  them,  at  least,  at  an  unusual  rate  of 
speed,  near  a  station,  run  into  each  other,  occasioning  destruction 
of  property  and  perilling  the  lives  of  the  passengers.  No  casualty 
can  occur  on  a  railroad  which  manifests  grosser  carelessness  than  a 
collision  of  trains  which  are  running  towards  each  other,  out  of 
time,  and  at  a  rate  of  speed  which  prevents  their  being  stopped  in 
season.     And  that  was  just  this  case. 

But  it  is  insisted  that,  although  the  defendants'  negligence  caused 
the  injury  complained  of,  the  plaintiff  should  have  been  nonsuited, 
because  his  careless  conduct  contributed  to  produce  it.  The  mis- 
conduct alluded  to  is,  that,  upon  seeing  the  approaching  train  and 


632  CAKRIEKS   OF   PASSENGERS. 

meu  jumping  from  other  cars  to  avoid  the  impending  danger,  he  left 
his  seat  and  rushed  to  the  forward  door  of  the  car  with  the  view  of 
escaping  himself,  and  had  stepped  one  foot  upon  the  platform  at  the 
instant  of  the  collision.  This,  it  is  said,  was  such  negligence  as  to 
have  required  the  court  to  nonsuit  the  plaintiff.  That  is,  as  a 
matter  of  law,  a  passenger  in  a  railroad  car,  who  sees  that  he  is 
placed  in  peril  by  the  culpable  conduct  of  the  managers  of  the  road, 
and  judges  correctly  that  a  collision  is  inevitable,  is  guilty  of  a 
wrong  if  he  does  not  control  the  instinct  of  self-preservation,  and 
sit  still,  and  take  the  chances  of  safety.  This  is  not  the  law.  See- 
ing the  danger  in  which  he  was  placed,  the  plaintiff  was  justiliable 
in  seeking  to  escape  injury  by  leaving  the  car.  His  act  was  not  the 
result  of  a  rash  apprehension  of  danger  that  did  not  exist.  By  the 
merest  chance,  the  passengers  in  the  same  car  with  him,  and  who 
did  not,  like  him,  see  the  approaching  collision,  and  who  retained 
their  seats,  escaped  uninjured.  Although  doubtless  much  excited, 
I  do  not  think  even  that  there  was  an  error  of  judgment  as  to  the 
course  pursued  to  secure  safety.  A  moment  of  time  earlier  would 
have  enabled  him  to  leap  from  the  car,  thus  affording  a  probable 
chance  of  escape.  But  if  he  misjudged  in  this  respect,  the  circum- 
stances did  not,  as  matter  of  law,  charge  him  with  negligence,  or 
want  of  ordinary  prudence.  Seeing  the  approaching  train,  and  that 
a  collision,  with  its  consequences,  was  inevitable,  it  was  not  the 
dictate  of  prudence  to  have  deliberately  kept  his  seat  without  an 
effort  at  self-preservation.  There  is  no  man,  under  the  circum- 
stances, retaining  his  senses  and  acting  with  ordinary  prudence, 
that  would  not  have  exerted  himself  in  some  way  to  escape  the  great 
peril.  It  was  not  to  invite,  but  to  escape  injury  that  he  left  his 
seat,  and  rushed  to  the  door  of  the  car;  and  an  instant  of  time  more 
would  have  enabled  him  to  effect  his  purpose.  That  other  passen- 
gers, who  neither  saw  or  had  notice  of  the  impending  danger, 
remained  in  their  seats,  and,  by  chance,  were  uninjured,  is  no  evi- 
dence that  they  judged  rationally,  or  judged  at  all,  as  to  what 
])rudence  required,  or  that  the  plaintiff  misjudged,  and  acted  rashly. 
At  all  events,  it  was  for  the  jury,  and  not  the  court,  to  say  whether 
the  i>laintiff's  conduct,  in  view  of  the  circumstances,  was  rash  or 
imprudent,  or  amounted  to  negligence. 

The  court  was  requested  to  charge  the  jury,  that  as  the  plaintiff 
wa.s  injured  on  the  platform  of  the  car,  in  violation  of  the  printed 
re;,'ul:itions  of  the  comi)any,  he  was  not  entitled  to  recover.  This 
w.-is  properly  refused.  Tlie  statute  exempts  a  railroad  com])any 
from  liability  to  a  passenger  who  shall  be  injured  wliile  on  the 
platform  of  a  car,  &c.,  in  violation  of  the  printed  regulations  of  the 
company  posted  up  at  the  time  in  a  conspicuous  place  inside  of  its 
]■  !■  cars  then  in  tlie  train;  ])rovidod  the  fompany  at  tlie  time 

t  I    room  inside  its  i)assengcr  cars   siillicii'nt   for  tlie  pro])er 

occonunodation  of  the   passengers.     Laws  of  1850,  cli.    M<>,   §    HJ. 


LIABILITY  FOR   INJURIES.  633 

There  was,  in  this  case,  a  printed  regulation,  pursuant  to  this 
statute,  posted  in  a  conspicuous  place  inside  the  car,  prohibiting 
passengers  from  standing  or  riding  on  the  platform  of  any  car.  But 
neither  the  statute  nor  the  regulation  has  any  application  to  a  case 
like  the  present  one.  The  plaintiff  was  not  standing  or  riding  on 
the  platform  at  the  time  of  the  collision,  but  was  harrying  as  fast 
as  he  could  to  leave  the  car,  in  order  to  escape  an  imminent  peril. 
The  statute  was  intended  to  prevent  the  imprudent  act  of  standing 
or  riding  on  the  platform,  but  not  to  absolve  railroad  companies 
from  responsibility  for  every  injury  which  might  happen  at  that 
place,  when  a  passenger  is  passing  over  it,  Avhile  justitiably  enter- 
ing or  leaving  the  cars. 

I  am  of  the  opinion  that  the  judgment  of  the   Supreme  Court 
should  be  affirmed. 


WAITE  V.   NORTHEASTERN  R.    CO. 
Queen's  Bench.     E.  B.  &  E.  719.     1858. 

Action  by  Alexander  Waite,  the  younger,  an  infant,  by  Alex- 
ander Waite,  his  next  friend. 

On  the  trial,  before  Martin,  B.  ,  at  the  last  Spring  Assizes  for 
Northumberland,  it  appeared  that  defendants  had  the  management 
of  a  railway  from  Tweedmouth  to  Kelso;  and  that,  on  1st  January, 
1857,  plaintiff,  an  infant  of  the  age  of  five  years  or  thereabouts, 
accompanied  Mrs.  Park,  his  grandmother,  to  the  Velvet  Hall 
Station,  one  of  the  stations  on  the  Tweedmouth  and  Kelso  Railway, 
for  the  purpose  of  proceeding  together  to  Berwick-upon-Tweed  by 
the  10.51  A.M.  train.  The  plaintiff  and  Mrs.  Park  arrived  at  the 
Velvet  Hall  Station  at  10.30.  Mrs.  Park  bought  of  the  station- 
master  a  ticket  for  herself  and  a  half-ticket  for  plaintiff,  which 
entitled  them  to  be  carried  to  the  Tweedmouth  Station  near  Berwick 
by  the  10.51  train.  The  platform  for  the  departure  of  passengers 
going  from  Velvet  Hall  Station  to  Tweedmouth  was  on  the  side  of 
the  railroad  opposite  to  the  ticket-office;  and  it  was  necessary  for 
such  passengers  to  cross  the  railway  on  a  level  to  get  to  that  plat- 
form. The  station-master,  in  giving  out  the  tickets,  informed  Mrs. 
Park  that  the  train  by  which  she  and  plaintiff  were  to  go  to  Tweed- 
mouth would  not  be  there  for  a  quarter  of  an  hour:  the  station- 
master  saw  Mrs.  Park  and  plaintiff  go,  after  having  got  their 
tickets,  and  sit  down  by  the  fire.  The  station-master,  who  was  the 
only  person  in  charge  of  the  station,  after  giving  out  the  said 
tickets,  immediately  left  the  ticket-office  and  went  to  the  end  of 
the  station-yard  to  superintend  the  unloading  of   some  goods,  and 


(J3-1  CARRIERS   OF   PASSi:NGERS. 

returned  in  seven  or  eight  minutes,  which  was  not  until  after  the 
injuries  which  are  the  cause  of  the  present  action  had  been  sus- 
tained. While  so  engaged,  the  station-master  was  unable,  owing 
to  the  position  in  which  he  was,  to  see  the  ticket-office  or  the  plat- 
form. Neither  could  he  see  along  the  line  towards  Tweedmouth; 
but  could  see  along  the  line  towards  Kelso.  Any  train,  as  it 
approached  the  Velvet  Hall  Station  from  Kelso,  could  be  seen  by 
any  one  on  the  platform  for  a  considerable  distance:  the  station- 
master  generally  went  into  the  room  and  told  the  passengers  to 
cross  when  the  train  was  in  sight;  and  had  done  so  to  Mrs.  l*ark 
when  she  was  there,  she  having  been  frequently  in  the  habit  of 
going  by  that  train  to  Tweedmouth.  The  station-master  did  not 
warn  plaintiff  or  Mrs.  Park  against  crossing  the  line,  or  inform 
them  that  another  train  was  expected  to  pass  the  station  before  the 
arrival  of  their  train.  Nor  were  any  means  adopted,  by  locking 
the  door  of  the  ticket-office,  or  otherwise,  to  prevent  the  plaintiff 
or  Mrs.  Park  crossing  the  line  at  any  time;  nor  was  there  any  clock 
at  the  station.  Before  the  passenger  train  for  which  the  plaintiff 
and  Mrs.  Park  had  taken  tickets  arrived  at  the  station,  a  goods 
train  coming  from  Kelso,  with  a  tender  before  the  engine,  passed 
the  Velvet  Hall  Station,  going  towards  Tweedmouth;  ]Mrs.  Park  and 
the  plaintiff  were  struck  by  it  as  they  were  crossing  the  line  to  go 
to  the  platform  already  mentioned.  Mrs.  Park  was  killed:  and 
jdaintiff  was  severely  injured;  and  for  that  injury  the  present 
action  was  brought.  The  goods  train  was  not  a  train  which 
stopped  at  the  station,  and  passed  the  station  at  its  usual  pace  of 
about  twenty  miles  an  hour.  No  one  saw  Mrs.  Park  or  plaintiff  in 
the  act  of  crossing  the  railway;  and  neither  the  station-master  nor 
any  one  on  the  goods  train  knew  that  the  injuries  had  been  sustained 
until  after  the  goods  train  had  passed  the  station. 

The  jury,  in  answer  to  questions  put  to  thorn  by  the  learned  judge, 
found  that  defendants  were  guilty  of  negligence,  and  that  Mrs. 
Park  was  also  guilty  of  negligence  which  contributed  to  the  acci- 
dent; and  they  assessed  tlie  damages  at  £20.  There  was  no  negli- 
gence, nor  was  any  suggested  on  the  part  of  the  infant  plaintiff. 
The  learned  judge  directed  a  verdict  for  the  plaintiff  for  £20,  witli 
leave  to  the  defendants  to  move  to  enter  a  verdict  for  them  or  for 
a  non.suit. 

Jjord  Cami'HKI.l,  C.  d.  In  tliis  case  we  tliink  tliat  the  rule  ought 
'  ■  '"•  made  absolute  for  entering  a  verdict  for  the  defendants,  or  for 
I  :.  'iLsuit.  The  jury  must  be  taken  to  liave  found  that  Mrs.  Park, 
t  .'  ►^'nmclmother  of  the  infant  plaintiff,  in  whose  care  he  was  when 
tii>-  :iecident  liappened,  was  guilty  of  negligence  without  which  the 
.if'idiMit  would  not  have  happeneil;  and  that,  notwithstanding  the 
n<';,'lig«?nce  of  tlje  (lefendants,  if  she  had  acted  upon  this  occasion 
with  ordinary  caution  and  jjrudence,  neither  she  herself  nor  the 
infant  would  have  suffered.     Under  such   circumstances,  had  she 


LIABILITY   FOR   INJURIES.  635 

survived,  she  could  not  have  maintained  any  action  against  the 
company ;  and  we  think  that  the  infant  is  so  identified  with  her  that 
the  action  in  his  name  cannot  be  maintained.  The  relation  of 
master  and  servant  certainly  did  not  subsist  between  the  grandchild 
and  the  grandmother ;  and  she  cannot,  in  any  sense,  be  considered 
his  agent:  but  we  think  that  the  defendants,  in  furnishing  the 
ticket  to  the  one  and  the  half  ticket  for  the  other,  did  not  incur  a 
greater  liability  towards  the  grandchild  than  towards  the  grand- 
mother, and  that  she,  the  contracting  party,  must  be  implied  to  have 
promised  that  ordinary  care  should  be  taken  of  the  grandchild. 

We  do  not  consider  it  necessary  to  offer  any  opinion  as  to  the 
recent  cases  in  which  passengers  by  coaches  or  by  ships  have 
brought  actions  for  damage  suffered  from  the  negligent  management 
of  other  coaches  and  ships,  there  having  been  negligence  in  the 
management  of  the  coaches  and  ships  by  which  they  were  travelling, 
as,  at  all  events,  a  complete  identification  seems  to  us  to  be  con- 
stituted between  the  plaintiff  and  the  party  whose  negligence  con- 
tributed to  the  damage  which  is  the  alleged  cause  of  action,  in  the 
same  manner  as  if  the  plaintiff  had  been  a  baby  only  a  few  days 
old,  to  be  carried  in  a  nurse's  arms. 

Rule  absolute. 

In  the  Exchequer  Chamber. 

The  plaintiff  having  appealed  against  the  above  decision,  the  case 
was  now  argued. 

CocKBURN,  C.  J.  I  am  of  opinion  that  the  judgment  of  the 
Court  of  Queen's  Bench  ought  to  be  affirmed.  I  put  the  case  on 
this  ground :  that,  when  a  child  of  such  tender  and  imbecile  age  is 
brought  to  a  railway  station  or  to  any  conveyance,  for  the  purpose 
of  being  conveyed,  and  is  wholly  unable  to  take  care  of  itself,  the 
contract  of  conveyance  is  on  the  implied  condition  that  the  child  is 
to  be  conveyed  subject  to  due  and  proper  care  on  the  part  of  the 
person  having  it  in  charge.  Such  care  not  being  used,  where  the 
child  has  no  natural  capacity  to  judge  of  the  surrounding  circum- 
stances, a  child  might  get  into  serious  danger  from  a  state  of  things 
which  would  produce  no  disastrous  consequences  to  an  adult  capable 
of  taking  care  of  himself.  Here  the  child  was  under  the  charge  of 
his  grandmother;  and  the  company  must  be  taken  to  have  received 
the  child  as  under  her  control  and  subject  to  her  management.  The 
plea  and  the  finding  show  that  the  negligence  of  the  defendants  con- 
tributed partially  to  the  damage;  but  that  the  negligence  of  the 
person  in  whose  charge  the  child  was,  and  with  reference  to  whom 
the  contract  of  conveyance  was  made,  also  contributed  partially. 
There  is  not  therefore  that  negligence  on  the  part  of  the  defendants 
which  is  necessary  to  support  the  action. 

Pollock,  C.  B.  I  entirely  agree.  The  shortest  way  of  putting 
Mr.  Mellish^s  argument  is  that  this  is  not  a  mere  case  of  simple 


636  CARRIERS   OF   PASSENGERS. 

wrong,  but  one  arising  from  the  contract  of  the  grandmother  on  the 
I)art  of  the  plaintiff,  who  must  avail  himself  of  that  contract,  with- 
out which  he  cannot  recover.  There  really  is  no  ditt'ereuce  between 
the  case  of  a  person  of  tender  years  under  the  care  of  another  and  a 
^  ■  ■  '  chattel  committed  to  the  care  of  an  individual,  or  even  not 
,  Ito  such  "care.     The  action  cannot  be  maintained,  unless 

it  can  be  maintained  by  the  person  having  the  apparent  possession, 
even  though  the  child  or  the  chattel  was  not  regularly  put  into  the 
possession  of  the  person,  as,  for  instance,  though  the  party  taking 
charge  of  the  child  had  done  so  without  the  father's  consent;  that 
circumstance  would  make  no  difference  as  to  the  question  of  the 
child's  right.  That  is  my  reason  for  pressing  this  argument  of  Mr. 
Mtllish,  as  it  meets  every  possible  view  of  the  case. 

Williams,  J.  I  am  entirely  of  the  same  opinion.  The  view  of 
the  jury  was  that  the  accident  would  not  have  occurred  but  for  the 
negligence  of  the  grandmutlier.  There  was  here,  as  it  seems  to  me, 
from  the  particular  circumstances  of  the  case,  an  identification  of 
the  plaintiff  with  the  grandmother,  whose  negligence  is  therefore  an 
answer  to  the  action.  At  the  same  time,  I  do  not  mean  to  express 
any  doubt  that,  generally,  where  a  child  is  of  such  tender  years  as 
here,  and  is  carried  about  by  any  person  having  it  in  charge,  the 
rule  as  to  joint  negligence  of  plaintilf  and  defendant  applies.  The 
person  who  has  the  charge  of  the  child  is  identified  with  the  child. 
If  a  father  drives  a  carriage,  in  which  his  infant  child  is,  in  such 
a  way  that  he  incurs  an  accident,  which  by  the  exercise  of  reason- 
able care  he  might  have  avoided,  it  would  be  strange  to  say  that, 
though  he  himself  could  not  maintain  an  action,  the  child  could. 
So,  if  tlie  child  be  in  the  arms  of  a  person  who  does  not  choose  to 
get  out  of  tlie  way  of  a  train.  But  it  is  unnecessary  to  insist  on 
this  general  ground:  because,  on  the  mere  narrow  view  of  the  i)lain- 
tifT's  right  in  this  case,  the  defence  must  prevail. 

Crowi>kr,  J.  I  am  of  the  same  oi)inion,  on  the  grounds  given  in 
the  judgment  delivered  in  the  Court  of  Queen's  Bench.  The  case  is 
the  .same  as  if  the  child  liad  been  in  the  mother's  arms.  There  is 
■;fii':ition  such  that  the  negligence  of  the  grandmother  de- 
!'•  cliild  of  tlie  right  of  action.  Now  the  finding  of  the  jury 
would  clearly  have  prevented  the  grandmother  from  recovering:  it 
therefore  has  the  same  effect  in  respect  of  an  action  by  the  child. 
It  would  be  monstrous  an<l  absurd  if  there  couM  be  a  distinction. 

UuAMWKLL,  li.  I  am  of  the  same  (ipinion.  Tn  form  tlie  action  is 
for  a  wrong;  but  it  is  in  fact  for  a  breach  of  duty  created  by  con- 
I'.u-t.  It  is  alleged  that  the  plaintiff  was  lawfully  on  the  railway. 
That  could  ])e  so  only  on  the  suiJposition  that  he  had  become  a  ])as- 
r<-UL'»T  through  the  instnimentality  of  himself  or  another.  There 
I  eotitraet  or  «luty.  It  is  impossible  here  to  say  that  the 
J  contracted  any  other  duty  t(jwards  tlie  infant,  tluis  accom- 
panied, than  they  would  have  contracted  towards  an  adult,  or  that 


LIABILITY   FOR   DELAY.  637 

they  were  responsible  for  what  would  have  occasioned  no  mischief 
but  for  the  negligence  of  a  person  having  the  custody  of  the  plain- 
tiff. That  would  be  an  absurdity :  and  we  should  have  to  hold  that, 
where  a  chattel  is  injured  partly  through  the  negligence  of  the  party 
having  charge  of  it,  such  person  could  maintain  no  action,  but  that 
the  owner,  if  a  different  person,  could.  The  case  appears  even  more 
distinct  upon  the  pleadings.  The  first  count  charges  that  the  jjlain- 
tiff  was  lawfully  upon  and  crossing  the  railway;  the  second  plea 
denies  this,  and  states  that  the  plaintiff  was  under  the  direction 
and  control  of  a  person  who,  with  the  plaintiff,  was  wrongfully  on 
the  railway;  and  the  verdict  shows  this  plea  to  be  true.  The  second 
count  states  also  that  the  plaintiff  was  lawfully  on  the  railway ;  and 
it  is  similarly  answered. 

Watson,  B.  I  am  of  the  same  opinion.  The  plaintiff  is  a  child 
of  an  age  at  which  he  is  incapable  of  exercising  proj^er  care  for 
himself.  The  charge  against  the  company  is  that  they  did  not  give 
proper  warning  to  the  grandmother;  and  all  the  duties  which  arose 
towards  the  child  were  with  reference  to  it  as  being  under  the  charge 
of  the  grandmother;  and,  as  my  brother  Williams  says,  the  case  is 
the  same  as  if  the  plaintiff  had  been  a  child  in  arms.  Many  other 
cases  have  been  put  and  discussed  by  Mr.  Manisty;  but  these  we 
need  not  now  examine. 

Judgment  affirmed} 


5.    LIABILITY  FOR  DELAY. 

SEARS   V.    EASTERN"  R.    CO. 

14  Allen  (Mass.),  433.     1867. 

Action  containing  one  count  in  contract  and  one  in  tort.  Each 
count  alleged  that  the  defendants  were  common  carriers  of  passen- 
gers between  Boston  and  Lynn,  and  that  on  the  15th  of  September, 
1865,  the  plaintiff  was  a  resident  of  Nahant,  near  Lynn,  and  the 
defendants  before  then  publicly  undertook  and  contracted  with  the 
public  to  run  a  train  for  the  carriage  of  passengers  from  Boston  to 
Lynn  at  nine  and  one  half  o'clock  in  the  evening  each  week-day, 
Wednesdays  and  Saturdays  excepted;  and  the  plaintiff,  relying  on 
said  contract  and  undertaking,  purchased  of  the  defendants  a  ticket 
entitling  him  to  carriage  upon  their  cars  between  Boston  and  Lynn, 
and  paid  therefor  twenty-five  cents  or  thereabouts,  and  on  a  certain 

^  The  passenger  is  not  so  far  identified  with  the  carrier  that  negligence  of  the  car- 
rier will  be  imputed  to  him  in  an  action  against  a  third  person  for  an  accident  due  to 
the  negligence  of  such  third  person  causing  him  injury.  See  Little  v.  Hackett,  116 
U.  S.  366.     (1886.) 


638  CARRIERS   OF   PASSENGERS. 

week-day  thereafter,  neither  "Wednesday  nor  Saturday,  namely,  on 
the  loth  of  said  September,  presented  himself  on  or  before  the  hour 
of  nine  and  a  half  o'clock  in  the  evening  at  the  defendants'  station 
in  Boston  and  offered  and  attempted  to  take  the  train  undertaken 
to  be  run  at  that  hour,  as  a  passenger,  but  the  defendants  negli- 
gently and  wilfullyomitted  to  run  the  said  train  at  that  hour,  or 
anv  train  for  Lynn  till  several  hours  thereafter;  wherefore  the  plain- 
tiff was  compelled  to  hire  a  livery  carriage  and  to  ride  therein  to 
Lynn  by  night,  and  was  much  disturbed  and  inconvenienced. 

The  following  facts  were  agreed  in  the  Superior  Court-.  The  de- 
fendants were  common  carriers,  as  alleged,  and  inserted  in  the 
"Boston  Daily  Advertiser,"  "Post,"  and  "Courier,"  from  the  15th 
day  of  August  till  the  15th  day  of  September  an  advertisement  an- 
nouncing the  hours  at  which  trains  would  leave  Boston  for  various 
places,  and  among  others  that  a  train  would  leave  for  Lynn  at 
9.30  p.  M.  except  Wednesdays,  when  it  would  leave  at  11.15,  and 
Saturdays,  when  it  would  leave  at  10.30. 

The  i)laintiff,  a  resident  of  Nahant,  consulted  one  of  the  above 
papers,  about  the  9th  of  September,  1865,  for  the  purpose  of  ascer- 
taining the  tiifte  when  the  latest  night  train  would  start  from 
Boston  for  Lynn  on  the  15th,  in  order  to  take  the  train  on  that  day, 
and  saw  the  advertisement  referred  to.  On  the  15th,  which  was  on 
Friday,  he  came  to  Boston  from  Lynn  in  a  forenoon  train,  and  in 
the  evening,  shortly  after  nine  o'clock,  presented  himself  at  the 
defendants'  station  in  Boston  for  the  purpose  of  taking  the  9.30 
train  for  Lynn,  having  with  him  a  ticket  which,  previously  to  Sep- 
tember 9th,  he  had  purchased  in  a  package  of  five.  This  ticket 
specified  no  particular  train,  but  purported  to  be  good  for  one  pas- 
sage in  the  cars  between  Boston  and  Lynn  during  the  year  1865. 
lie  learned  that  this  train  had  been  postponed  to  11.15,  on  account 
of  an  exhibition,  and  thereupon  hired  a  buggy  and  drove  to  Lynn, 
arriving  there  soon  after  10.30.  He  liad  seen  no  notice  of  any  post- 
jionement  of  this  train.  lie  once,  in  1864,  observed  a  notice  of  post- 
ponement, and  heard  that  tlie  defendants  sometimes  postponed  their 
late  trains. 

For  several  years  before  1865,  the  defendants'  superintendent  had 
been  accustomed  occasionally  to  postpone  this  train,  as  often  as  from 
once  to  three  times  a  montli,  for  the  purpose  of  allowing  tlie  pul)lic 
to  attend  places  of  amusement  and  instruction,  and  also  upon  holi- 
days and  other  public  occasions  in  Boston;  giving  notice  thereof  by 
liandbills  posted  in  the  defendants'  cars  and  stations.  On  tlie  13th 
of  SeptciiibfT,  1865,  in  pursuance  of  this  custom,  he  decided  to  post- 
jiono  this  train  for  September  15th  till  11.15,  and  on  the  sain*^  day 
c.iusffl  notice  thereof  to  be  printed  and  posted  in  the  usual  nianiier. 
Th(!  train  was  so  postponed,  and  left  Boston  at  1 1.15,  an  iving  at 
Lynn  at  11.15. 

The  defendants  offered  to  prove,  if  competent,  that  this  usage  of 


LIABILITY    FOE   DELAY.  639 

detaining  the  train  was  generally  known  to  the  people  using  the 
Eastern  Railroad,  and  that  the  number  of  persons  generally  going 
by  the  postponed  train  was  larger  than  generally  went  by  the  9,30 
train,  and  was  larger  on  the  evening  in  question;  but  at  the  station 
in  Boston  there  were  persons  complaining  of  the  postponement  of 
the  train,  and  leaving  the  station. 

It  was  agreed  that,  if  on  these  facts  the  plaintiff  was  entitled  to 
recover,  judgment  should  be  entered  in  his  favor  for  ten  dollars, 
without  costs.  Judgment  was  rendered  for  the  defendants,  and  the 
plaintiff  appealed  to  this  court. 

Chapman,  J.  If  this  action  can  be  maintained,  it  must  be  for 
the  breach  of  the  contract  which  the  defendants  made  with  the  plain- 
tiff. He  had  purchased  a  package  of  tickets  entitling  him  to  a 
passage  in  their  cars  for  each  ticket  from  Boston  to  Lynn.  This 
constituted  a  contract  between  parties.  Cheney  v.  Boston  &  Fall 
River  Railroad,  11  Met.  121 ;  Boston  &  Lowell  Railroad  v.  Proctor, 
1  Allen,  267;  Najac  v.  Boston  &  Lowell  Railroad,  7  Allen,  329. 
The  principal  question  in  this  case  is,  what  are  the  terms  of 
the  contract?  The  ticket  does  not  express  all  of  them.  A  public 
advertisement  of  the  times  when  their  trains  run  enters  into  the 
contract,  and  forms  a  part  of  it.  Denton  v.  Great  Northern  Rail- 
way, 5  El.  &  Bl.  860.  It  is  an  offer  which,  when  once  publicly 
made,  becomes  binding,  if  accepted  before  it  is  retracted.  Boston 
&  Maine  Railroad  v.  Bartlett,  3  Cush.  227,  Advertisements  offering 
rewards  are  illustrations  of  this  method  of  making  contracts.  But 
it  would  be  unreasonable  to  hold  that  advertisements  as  to  the  time 
of  running  trains,  when  once  made,  are  irrevocable.  Railroad  cor- 
porations find  it  necessary  to  vary  the  ti^  of  running  their  trains, 
and  they  have  a  right,  under  reasonable  limitations,  to  make  this 
variation,  even  as  against  those  who  have  purchased  tickets.  This 
reserved  right  enters  into  the  contract,  and  forms  a  part  of  it.  The 
defendants  had  such  a  right  in  this  case. 

But  if  the  time  is  varied,  and  the  train  fails  to  go  at  the  appointed 
time,  for  the  mere  convenience  of  the  company  or  a  portion  of  their 
expected  passengers,  a  person  who  presents  himself  at  the  advertised 
hour,  and  demands  a  passage,  is  not  bound  by  the  change  unless  he 
has  had  reasonable  notice  of  it.  The  defendants  acted  upon  this 
view  of  their  duty,  and  gave  certain  notices.  Their  trains  had  been 
advertised  to  go  from  Boston  to  Lynn  at  9.30  p.  m.,  and  the  plaintiff 
presented  himself,  with  his  ticket,  at  the  station  to  take  the  traiu ; 
but  was  there  informed  that  it  was  postponed  to  11.15.  The  post- 
ponement had  been  made  for  the  accommodation  of  passengers  who 
desired  to  remain  in  Boston  to  attend  places  of  amusement.  Certain 
notices  of  the  change  had  been  given ;  but  none  of  them  had  reached 
the  plaintiff.  They  were  printed  handbills  posted  up  in  the  cars 
and  stations  on  the  day  of  the  change,  and  also  a  day  or  two  before. 
Though  he  rode  in  one  of  the  morning  cars  from  Lynn  to  Boston,  he 


640  CARRIERS   OF   PASSENGERS. 

did  not  see  the  notice,  ami  no  legal  presumption  of  notice  to  him 
arises  from  the  fact  of  its  being  posted  up.  Brown  v.  Eastern  Rail- 
road, 11  Cush.  101;  Malone  v.  Boston  &  ^Yorcester  Railroad,  12 
Gray,  388.  The  defendants  published  daily  advertisements  of  their 
regular  trains  in  the  "Boston  Daily  Advertiser,"  "Post,"  and 
"Courier,"  and  the  plaintiff  had  obtained  his  information  as  to  the 
time  of  running  from  one  of  these  papers.  If  they  had  published  a 
notice  of  the  change  in  these  papers,  we  think  he  would  have  been 
bound  by  it.  For  as  they  had  a  right  to  make  changes,  he  would  be 
bound  to  take  reasonable  pains  to  inform  himself  whether  or  not  a 
change  was  made.  So  if  in  their  advertisement  they  had  reserved 
the  right  to  make  occasional  changes  in  the  time  of  running  a  par- 
ticular train,  he  would  have  been  bound  by  the  reservation.  It 
would  have  bound  all  passengers  who  obtained  their  knowledge  of 
the  time-tables  from  either  of  these  sources.  But  it  would  be  con- 
trary to  the  elementary  law  of  contracts  to  hold  that  persons  who 
relied  upon  the  advertisements  in  either  of  those  papers  should  be 
bound  by  a  reservation  of  the  offer,  which  was,  without  their  knowl- 
edge, posted  up  in  the  cars  and  stations.  If  the  defendants  wished 
to  free  themselves  from  their  obligations  to  the  whole  public  to  run 
a  train  as  advertised  tliey  should  publish  notice  of  the  change  as 
extensively  as  they  published  notice  of  the  regular  trains.  And  as 
to  the  plaintiff,  he  was  not  bound  by  a  notice  published  in  the  cars 
and  stations  which  he  did  not  see.  If  it  had  been  published  in  the 
newspapers  above  mentioned,  where  his  information  had  in  fact  been 
obtained,  and  he  had  neglected  to  look  for  it,  the  fault  would  have 
been  his  own. 

The  evidence  as  to  the  former  usage  of  the  defendants  to  make 
occasional  changes  was  immaterial,  because  the  advertisement  was 
an  express  stipulation  wliich  superseded  all  customs  that  were  in- 
consistent with  it.  An  express  contract  cannot  be  controlled  or 
varied  by  usage.     Ware  ?;.  Hayward  Rubber  Co.,  3  Allen,  84. 

The  court  are  of  opinion  that  the  defendants,  by  failing  to  give 
such  notice  of  the  change  made  by  them  in  the  time  of  running  their 
train  on  the  evening  referred  to  as  the  ])laintiff  was  entithnl  to  re- 
ceive, violated  their  contract  with  him,  and  are  liable  in  tliis  action. 

Judgment  for  the  j/ldintiff. 


NUNN  V.    GEORGIA   R.    CO. 

71  (;.i.  710.     1S83. 

of  damages  for  carrying  beyond  destination.     Tlic  opinion 
cu.sc.'.     The  defendant  liad  judgment  below. 
Hall,  J.     The  plaintiff  had  a  season  ticket,  commonly  kiidwn  as 


LIABILITY   FOR   DELAY.  641 

a  "book,"  which  entitled  him  to  travel  on  the  cars  of  the  defendant 
company  from  Atlanta  to  his  home  at  Clarkston,  — a  point  between 
tlie  regular  stations  on  the  road  at  Decatur  and  Stone  IMountain,  at 
which  trains  stopped  to  put  off  and  take  on  passengers  when  so  noti- 
fied. On  the  night  in  question  he  took  passage  at  Atlanta  for  his 
home,  and  when  he  delivered  the  conductor  his  ticket  he  informed 
him  that  he  had  lost  much  sleep  the  night  before,  and  would  prob- 
ably sleep  on  his  journey,  and  requested  him  when  he  reached  his 
destination,  to  awaken  him  and  put  him  off,  which  the  conductor 
promised  to  do.  He  slept  until  he  passed  beyond  Stone  Mountain, 
and  below  there  was  aroused,  and  informed  that  he  had  passed  his 
home.  Here  he  left  the  cars  in  the  night,  and  walked  rapidly  in 
the  dark  a  distance  of  seven  or  eight  miles  to  his  home,  which  he 
reached  between  11  and  12  o'clock.  During  this  walk  he  labored 
under  considerable  mental  anxiety,  on  account  of  the  situation  of 
his  wife,  whom  he  had  left  in  the  morning  quite  sick,  and  gone  to 
Atlanta  to  procure  medicine  for  her;  had  obtained  it,  and  then  had 
it  with  him.  He  reached  home  in  time  to  relieve  her  with  the 
medicine  he  carried.  He  suffered  from  considerable  soreness  in 
consequence  of  his  walk,  was  not  able  to  do  full  work,  and  remained 
at  home  next  day,  and  thereby  lost  his  wages,  amounting  to  two 
dollars.  It  did  not  appear  from  the  evidence  that  the  train  was  not 
halted  at  Clarkston  a  sufficient  length  of  time  to  enable  the  plaintiff 
to  get  off,  or  that  the  place  was  not  called  in  the  customary  manner: 
nor  was  it  shown  by  any  regulation  of  the  company  that  it  undertook 
that  the  conductor  at  each  stopping-place  should  go  through  the 
train  and  see  that  every  passenger  was  safely  passed  out  of  the  cars. 
It  was  shown  that  the  conductor,  when  specially  applied  to,  had  in 
some  instances  performed  this  service  for  passengers.  It  was  in- 
cumbent upon  the  plaintiff  to  make  out  his  case,  and  to  show  that 
he  had  been  damaged  by  a  violation  of  his  contract  with  the  com- 
pany. In  the  opinion  of  the  Superior  Court  he  failed  in  this,  and 
on  motion  a  nonsuit  was  awarded  at  the  close  of  the  testimony,  first, 
because  the  proof  failed  to  show  that  it  was  customary  for  the  con- 
ductor to  go  through  the  train  and  wake  up  a  passenger  who  hap- 
pened to  be  asleep.  Secondly,  because  no  breach  of  plaintiff's 
contract  with  the  defendant  was  shown,  or  that  there  was  any  proof 
of  a  failure  to  stop  at  the  designated  point  sufficiently  long  for  the 
plaintiff  to  get  off  the  cars.  Thirdly,  because  it  did  not  satisfac- 
torily appear  whether  the  loss  of  the  day's  work,  which  was  the 
only  damage  proved,  was  caused  by  the  failure  to  put  plaintiff  off 
at  home,  and  by  the  long  walk  he  took  in  consequence  of  being 
carried  beyond  it,  or  by  other  causes,  which  might  have  contributed 
to  that  result,  such  as  the  loss  of  sleep  on  the  previous  night. 

In  determining  the  propriety  of  this  ruling,  it  will  be  essential  to 
consider  whether  the  conductor's  promise  to  wake  plaintiff  was 
included  in  the  company's  contract  to  transport  him  from  Atlanta  to 

41 


042  CARRIERS   OF   PASSENGERS. 

Clarkston;  if  it  was,  and  there  was  any  failure  in  that  respect,  then 
there  was  a  breach  of  the  agreement,  and  he  had  a  right  to  recover 
at  least  nominal  damages;  if  it  was  not,  then  a  failure  in  regard 
thereto  was  damninn  absque  injiwia,  his  rights  were  not  violated, 
he   was   not   entitled  to    recover,    and   the   nonsuit    was    properly 

awarded. 

"Tlie  sale  of  a  ticket  to  a  passenger  is  a  contract  to  carry  liim 
according  to  the  reasonable  regulations  of  the  company,  and  he  is 
presumed  also  to  contract  with  reference  to  them."  Fierce  Am. 
Ky.  Law,  491.  It  likewise  seems  a  necessary  implication  from  this 
rule,  that  the  train  should  be  stopped  at  the  point  of  destination  a 
sufficient  length  of  time  to  allow  the  party  to  leave  it  wath  safety 
to  his  life  and  person,  51  Ga.  489;  45  Ga.  288;  and  if  he  is  carried 
beyond  his  place,  by  no  fault  of  his,  but  by  the  failure  of  the  com- 
pany's agent  to  do  his  duty  in  that  behalf,  he  is  entitled  to  recover 
any  damage  he  may  sustain.     Id. 

it  is  insisted  that  if  not  directly  bound  to  perform  such  acts  as  the 
present,  the  conductor,  as  the  company's  servant,  was  impliedly 
authorized  to  bind  the  company  by  this  promise,  and  his  failure  to 
perform  it  would  render  the  company  liable.  This  is  likened  to  the 
ability  of  the  servant  to  contract  debts  for  the  master,  growing  out 
of  the  peculiar  nature  of  the  business,  and  from  which  authority  is 
necessarily  implied,  in  order  to  carry  out  the  agency.  Wood  Mast. 
and  Serv.  §§  263,  267,  268,  are  cited  to  this  latter  effect.  But  we 
cannot  reach  that  conclusion.  It  was  certainly  not  necessary  to  the 
performance  of  the  ordinary  duties  of  the  conductor  in  putting  pas- 
sengers off  the  train  that  he  should  give  them  any  otlicr  than  the 
customary  warning,  and  opportunity  to  avail  themselves  of  it.  The 
regulations  under  which  he  acted  required  nothing  more  at  the 
hands  of  the  company ;  its  contract  was  made  with  that  view,  and 
any  requirement  in  excess  of  it  would  be  a  departure  from  tlie  terms 
of  the  contract.  To  this  additional  act  the  company  did  not  assent. 
In  Pennsylvania  K.  Co.  v.  Kilgore,  32  Penn.  St.  294,  it  is  said : 
*'  We  do  not  think  it  was  the  duty  of  the  conductor  to  go  through 
the  train  and  see  that  every  person  was  safely  passed  out  of  the 
cars.  It  was  liis  duty  to  stop  the  train  sufficiently  long  enough  to 
enable  tlieni  to  get  out  witliout  damage  to  their  persons  or  their 
lives;  and  if  he  did  not,  he  was  derelict  in  l)is  duty." 

In  New  Orleans,  Jackson  &  Great  Nortliern  R.  Co.  w.  Statham, 
42  Miss.  GOT,  613,  the  Supreme  Court  of  that  State  applied  this 
princijile  to  sick  and  impdtent  ]}ersons.  Sliackleford,  C.  J.,  wlio 
ilelivcred  the  opinion,  declared  tliat  "railroad  cars  were  not  travel- 
ling hospitals,  nor  their  emj)loyees  nurses.  Sick  per.sons  have  the 
right  t*)  enter  the  cars  of  a  railroad  company;  as  common  carriers 
of  jtussengers,  they  cantiot  jirevent  tlieir  entering  tlieir  cars.  If 
they  are  incapable  of  taking  oare  of  tliemselves,  they  sliouhl  have; 
attendants  along  to  care  for  tlnin,  or  Id  render  tlieni  such  assistanee 


LIABILITY   FOK   DELAY.  643 

as  they  may  require  in  tlie  cars,  and  to  assist  them  from  the  cars  at 
the  point  of  their  destination.  It  is  not  the  duty  of  conductors  to 
see  to  the  debarkation  of  passengers.  They  should  have  the  stations 
announced;  they  shoukl  stop  the  trains  sufficiently  long  for  the  pas- 
sengers for  each  station  to  get  off.  When  this  is  done  their  duty  to 
the  passengers  is  performed.  All  assistance  that  a  conductor  may 
extend  to  ladies  without  escorts,  or  with  children,  or  to  persons 
who  are  sick,  and  ask  his  assistance  in  getting  on  and  off  trains,  is 
purely  a  matter  of  courtesy,  and  not  at  all  incumbent  upon  him  in 
the  line  of  his  public  duty." 

See  also  the  able  and  learned  opinion  of  Hardy,  C.  J.,  in  South- 
ern R.  Co.  V.  Kendrick,  40  Miss.  374,  which  covers  and  effectually 
disposes  of  every  question  considered  here.  These  cases  proceed 
upon  the  reasonable  ground  that  passengers  are  vigilant  to  perform 
their  parts  of  the  undertaking  which  they  set  out  to  accomplish, 
and  which  is  only  to  be  done  by  their  own  exertions.  It  results 
also  from  the  difference  of  the  obligations  of  carriers  of  goods  and 
of  passengers;  in  the  former  case,  the  obligation  is  to  carry  and 
deliver;  in  the  latter,  it  is  simply  to  carry  and  allow  passengers 
sufficient  time  and  opportunit}'  to  leave  the  vehicle.  Hutch.  Carr., 
§  614;  Thomp.  Car  Pass.  226,  227,  and  citations.  As  to  duty  of 
passengers  to  observe  the  known  and  obvious  rules  of  the  company 
in  entering  and  leaving  cars,  2  Redf.  Am.  Ry.  Cas.,  536,  540-542; 
3  Am.  and  Eng.  R.  Cases,  340. 

How  far  a  custom  upon  the  part  of  conductors,  known,  or  which 
may  be  presumed  to  be  known  to  the  company,  to  assist  unattended 
females  or  children,  or  infirm  persons,  will  modify  these  rules,  we 
do  not  now  decide,  as  there  is  nothing  in  this  case  falling  within 
such  a  principle.  This  was  a  drowsy  man ,  travelling  a  distance  of 
ten  miles;  he  made  no  contract  with  the  company  to  have  him 
aroused,  in  case  he  should  be  asleep  when  he  reached  his  destina- 
tion; he  relied  upon  the  courtesy  of  the  conductor  to  do  him  this 
kind  office,  as  it  seems  he  had  on  previous  occasions  done  for  him, 
and  perhaps  for  some  others.  These  exceptional  and  occasional 
instances  afforded  no  evidence  of  a  custom  binding  upon  the  com- 
pany. The  plaintiff  failed  to  make  out  any  case,  and  there  was  no 
error  in  sustaining  the  motion  for  a  nonsuit. 

Judgment  affirmed. 


644  CAKRIERS    OF   PASSENGERS. 


6.    LIMITATION   OF   LIABILITY. 

EAILAVAY   CO.    v.    STEVENS. 
95  U.  S.  055.     1877. 

Errok  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Elaine. 

This  was  an  action  on  tlie  case  for  negligence,  brought  against  tlie 
Grand  Trunk  Railway  of  Canada,  to  recover  damages  for  injuries 
received  by  Stevens  whilst  a  passenger  in  its  cars.  The  plaintiff, 
being  owner  of  a  patented  car-coupling,  was  negotiating  with  the 
defendant,  at  Portland,  Me. ,  for  its  adoption  and  use  by  the  latter, 
and  was  requested  by  the  defendant  to  go  to  Montreal  to  see  the 
superintendent  of  its  car  department  in  relation  to  the  matter,  the 
defendant  offering  to  pay  his  expenses.  The  plaintiff  consented  to 
do  this;  and,  in  pursuance  of  the  arrangement,  he  was  furnished 
with  a  pass  to  carry  him  in  the  defendant's  cars.  This  pass  was  in 
the  usual  form  of  free  passes,  thus,  "Pass  Mr.  Stevens  from  Port- 
land to  Montreal,'"'  and  signed  by  the  proper  officer.  On  its  back 
was  the  following  printed  indorsement :  — 

'•  Tlie  person  accepting  this  free  ticket,  in  consideration  thereof,  assumes 
all  risk  of  all  accidents,  and  expressly  agrees  that  the  company  shall  not  be 
liable,  under  any  circumstances,  whether  of  negligence  by  their  agents  or 
otherwise,  for  any  injury  to  the  person,  or  for  any  loss  or  injury  to  the  prop- 
erty, of  the  passenger  using  the  ticket.  If  presented  by  any  other  person  than 
the  individual  named  therein,  the  conductor  will .  take  up  this  ticket  and 
collect  fare." 

The  plaintiff  testified  that  he  put  the  pass  into  his  pocket  without 
looking  at  it;  and  the  jury  found  specially  that  he  did  not  read  the 
iiiflorsement  previous  to  the  accident,  and  did  not  know  what  was 
indorsed  upon  it.  lie  had  been  a  railroad  conductor,  however,  and 
had  seen  many  free  passes,  some  with  a  statement  on  the  back, 
others  without. 

During  the  passage  from  ]V)rtland  to  Montreal,  the  car  in  which 
the  pl.'iiiititT  was  riding  ran  off  the  track  and  was  precipitated  down 
an  enibankmont,  and  he  was  much  injured.  The  direct  cause  of  the 
accident,  according  to  the  proof,  was  that,  at  the  place  where  it 
occurred,  and  for  some  considcralde  distauoc  in  cacli  direction,  the 
bf.lu  li;ul  l)f.en  l)rokcn  oiT  the  fish-plates  wliicli  liold  the  ends  of  the 
'lier,  ao  that  many  of  tliese  plates  had  fallen  oif  on  each 
ing  the  rails  without  lateral  support.  The  consequence 
was  that  the  track  spread,  and  the  cars  ran  off,  as  before  stated. 


LIMITATION   OF   LIABILITY.  645 

There  was  also  evidence  that  at  this  place  the  track  was  made  of  old 
rails  patched  up. 

The  above  facts  appeared  on  the  plaintiff's  case,  and  the  defend- 
ant offered  no  evidence,  but  requested  the  court  to  instruct  the  jury- 
as  follows :  — 

First,  That  if  the  plaintiff,  at  the  time  of  sustaining  the  injury, 
was  travelling  under  and  by  virtue  of  the  pass  produced  in  evidence 
in  the  case,  he  was  travelling  upon  the  conditions  annexed  to  it. 

Second,  That  if  the  plaintiff,  at  the  time  of  sustaining  the  injury, 
was  travelling  under  and  by  virtue  of  the  pass  produced  in  evidence 
iu  the  case,  the  defendant  is  not  liable. 

Third,  That  if  the  plaintiff,  at  the  time  of  sustaining  the  injury, 
was  travelling  as  a  free  passenger,  the  defendant  is  not  liable. 

Fourth,  That  if  the  plaintiff,  at  the  time  of  sustaining  the  injury, 
was  travelling  as  a  gratuitous  passenger,  without  any  consideration 
to  the  defendant  for  his  transportation,  the  defendant  is  not  liable. 

The  court  refused  these  instructions,  as  inapplicable  to  the  evi- 
dence produced,  and  instructed  the  jury  as  follows,  viz. :  — 

That  if  the  jury  find  that,  in  May,  1873,  the  plaintiff  was  inter- 
ested in  a  car-coupling,  which  had  been  used  on  the  cars  of  the 
defendant  since  December  previous,  and  that  the  officers  of  the 
company  were  desirous  that  the  plaintiff  should  meet  them  at 
Montreal  to  arrange  about  the  use  of  such  couplings  on  their  cars 
by  defendant,  and  they  agreed  with  him  to  pay  his  expenses  if  he 
would  come  to  Montreal,  and  he  agreed  so  to  do,  and  took  passage 
on  defendant's  cars,  and  was,  by  the  reckless  misconduct  and  negli- 
gence of  the  defendant,  and  without  negligence  on  his  part,  injured 
whilst  thus  a  passenger  in  defendant's  car,  the  defendant  is  not 
exonerated  from  liability  to  plaintiff  for  his  damages  occasioned  by 
such  negligence,  by  reason  of  the  indorsement  upon  the  pass  pro- 
duced in  evidence. 

There  was  a  verdict  and  judgment  for  the  plaintiff.  The  defend- 
ant then  sued  out  this  writ  of  error. 

Mr.  Justice  Bradley.  It  is  evident  that  the  court  below  re- 
garded this  case  as  one  of  carriage  for  hire,  and  not  as  one  of  gratu- 
itous carriage,  and  that  no  sufficient  evidence  to  go  to  the  jury  was 
adduced  to  show  the  contrary;  and,  hence,  that  under  the  ruling  of 
this  court  in  Railroad  Company  v.  Lockwood,  17  Wall.  357,  it  was 
a  case  in  which  the  defendant,  as  a  common  carrier  of  passengers, 
could  not  lawfully  stipulate  for  exemption  from  liability  for  the 
negligence  of  its  servants.  In  taking  this  view  we  think  the  court 
was  correct.  The  transportation  of  the  plaintiff  in  the  defendant's 
cars,  though  not  paid  for  by  him  in  money,  was  not  a  matter  of 
charity  nor  of  gratuity  in  any  sense.  It  was  by  virtue  of  an  agree- 
ment, in  which  the  the  mutual  interest  of  the  parties  was  consulted. 
It  was  part  of  the  consideration  for  which  the  plaintiff  consented  to 
take  the  journey  to  Montreal.    His  expenses  in  making  that  journey 


646  CARRIERS   OF   PASSENGERS. 

were  to  be  paid  by  the  defendant,  and  of  these  the  expense  of  his 
transportation  was  a  part.  The  giving  him  a  free  pass  did  not  alter 
the  nature  of  the  transaction.  The  pass  was  a  mere  ticket,  or 
voucher,  to  be  shown  to  the  conductors  of  the  train,  as  evidence  of 
his  right  to  be  transported  therein.  It  was  not  evidence  of  any 
contract  by  which  the  phiintiff  was  to  assume  all  the  risk;  and  it 
would  not  have  been  valid  if  it  had  been.  In  this  respect  it  was  a 
stronger  case  than  that  of  Lockwood's.  There  the  pass  was  what 
is  called  a  "drover's  pass,"  and  an  agreement  was  actually  signed, 
declaring  that  the  acceptance  of  the  pass  was  to  be  considered  as  a 
waiver  of  all  claims  for  damages  or  injury  received  on  the  train. 
The  court  rightly  refused ,  therefore,  in  the  present  case,  to  charge 
that  the  plaintiff  was  travelling  upon  the  conditions  indorsed  on  the 
pass,  or  that,  if  he  travelled  on  that  pass,  the  defendant  was  free 
from  liability.  And  the  court  was  equally  right  in  refusing  to 
charge,  that,  if  the  plaintiff  was  a  free  or  gratuitous  passenger,  the 
defendant  was  not  liable.  The  evidence  did  not  sustain  any  such 
hypothesis.  It  was  uncontradicted,  so  far  as  it  referred  to  the 
arrangement  by  virtue  of  which  the  journey  was  undertaken. 

The  charge  actually  given  by  the  court  was  also  free  from  material 
error.  It  stated  the  law  as  favorably  for  the  defendant  as  the  latter 
had  a  right  to  ask.  If  subject  to  any  criticism,  it  is  in  that  part  in 
which  the  court  supposed  that  the  jury  might  find  that  the  plaintiff 
was  injured  by  the  reckless  misconduct  and  negligence  of  the  de- 
fendant. If  this  degree  of  fault  had  been  necessary  to  sustain  the 
action,  there  might  have  been  some  difficulty  in  deducing  it  from 
the  evidence.  However,  the  condition  of  the  track  where  the  acci- 
dent took  place,  without  any  explanation  of  its  cause,  was  perhaps 
sufficient  even  for  such  an  inference.  If  the  defendant  could  have 
shown  that  the  injury  to  the  rails  was  the  result  of  an  accident  oc- 
curring so  shortly  before  the  passage  of  the  train  as  not  to  give  an 
opportunity  of  ascertaining  its  existence,  it  did  not  do  so,  but  chose 
to  rest  upon  tlie  evidence  of  the  plaintiff.  In  fact,  however,  negli- 
gence was  all  tliat  the  jdaintiff  was  bound  to  show;  and  of  this  there 
was  abundant  evidence  to  go  to  the  jury.  On  the  whole,  therefore, 
we  think  that  the  charge  presents  no  sufficient  ground  for  setting 
a.side  the  verdict.  The  charge,  if  not  formally  accurate,  was  not 
such  as  to  prfjudice  the  defendant. 

It  is  strongly  urged,  however,  that  the  plaintiff,  by  acce])ting  the 
free  pass  indorsed  as  it  was,  was  estopped  from  showing  that  he  was 
not  to  take  his  passage  upon  the  terms  therein  expressed;  or,  at 
Ic-ast,  tliat  his  acceptance  of  the  pass  should  be  regarded  as  compe- 
tent, if  not  conclusive,  evidence  that  such  a  pass  was  in  the  contem- 
pl.'itifjn  of  the  i)arties  when  tlie  arrangement  for  his  going  to 
Montreal  was  ma<le.  lint  we  have  already  shown  tliaf.  tlie  carrying 
of  the  plaintiff  from  Portland  to  ]\rontreal  was  not  a  mere  gratuity. 
To  call  it  'sueh  would  be  repugnant  to  the  essential  character  of  the 


LIMITATION    OF   LIABILITY.  647 

whole  transaction.  There  was  a  consideration  for  it,  both  good  and 
vahiable.  It  necessarily  follows,  therefore,  that  it  was  a  carrying 
for  hire.  Being  such,  it  was  not  competent  for  the  defendant,  as  a 
common  carrier,  to  stipulate  for  the  immunity  expressed  on  the  back 
of  the  pass.  This  is  a  sufficient  answer  to  the  argument  pro- 
pounded. The  defendant,  being,  by  the  very  nature  of  the  trans- 
action, a  common  carrier  for  hire,  cannot  set  up,  as  against  the 
plaintifP,  who  was  a  passenger  for  hire,  any  such  estoppel  or  agree- 
ment as  that  which  is  insisted  on. 

Since,  therefore,  from  our  view  of  the  case,  it  is  not  necessary  to 
determine  what  would  have  been  the  rights  of  the  parties  if  the 
plaintiff  had  been  a  free  or  gratuitous  passenger,  we  rest  our  decision 
upon  Railroad  Company  v.  Lockwood,  sxqira.  We  have  no  doubt  of 
the  correctness  of  the  conclusion  reached  in  that  case.  We  do  not 
mean  to  imply,  however,  that  we  should  have  come  to  a  different 
conclusion,  had  the  plaintiff  been  a  free  passenger  instead  of  a  pas- 
senger for  hire.  We  are  aware  that  respectable  tribunals  have 
asserted  the  right  to  stipulate  for  exemption  in  such  a  case ;  and  it 
is  often  asked,  with  apparent  confidence,  "  May  not  men  make  their 
own  contracts,  or,  in  other  words,  may  not  a  man  do  what  he  will 
with  his  own? "  The  question,  at  first  sight,  seems  a  simple  one. 
But  there  is  a  question  lying  behind  that:  "Can  a  man  call  that 
absolutely  his  own  which  he  holds  as  a  great  public  trust,  by  the 
public  grant,  and  for  the  public  use  as  well  as  his  own  profit?" 
The  business  of  the  common  carrier,  in  this  country  at  least,  is 
emphatically  a  branch  of  the  public  service;  and  the  conditions  on 
which  the  public  service  shall  be  performed  by  private  enterprise 
are  not  yet  entirely"  settled.  We  deem  it  the  safest  plan  not  to 
anticipate  questions  until  they  fairly  arise  and  become  necessary 
for  our  decision.  Judgment  affirmed.^ 


BATES  V.    OLD  COLONY  R.    CO. 
147  Mass.  255.     1888. 

Tort  for  personal  injuries  sustained  by  the  plaintiff,  on  Novem- 
ber 4,  1885,  in  an  accident  upon  the  defendant's  railroad  while  he 
was  riding  in  a  baggage  car.  At  the  trial  in  the  Superior  Court, 
before  Sherman,  J.,  evidence  was  introduced  tending  to  prove  the 
following  facts. 

It  was  conceded  by  the  defendant  that  the  accident  resulted  from 
negligence  on  the  part  of  its  servants,  and  that  the  plaintiff,  if  right- 
fully in  the  car,  was,  at  the  time  of  the  accident,  in  the  exercise  of 
due  care.     None  of  the  passenger  cars  in  the  same  train  with  the 

1  Contra:  Bissell  v.  New  York  Central  R.  Co.,  25  N.  Y.  442.     (1862.) 


648  CARRIERS  OF  PASSENGERS. 

bao'O'age  car  ware  thrown  from  the  track  by  the  accident,  and  no 
person  in  them  was  injured. 

The  phiintiti'  was  empkiyed  as  an  express  messenger  b}-  the  New 
York  &  Boston  Despatch  Express  Company,  which  was  carrying  on 
the  express  business  over  the  road  of  the  defendant  between  South 
Framingham  and  Fitchburg.  On  January  1,  1885,  and  at  the  time 
of  the  accident,  the  contract  between  the  defendant  and  the  express 
company  was,  that  the  defendant  shoukl  transport  the  express 
matter  at  a  specific  price,  and  shoukl  transport  the  messengers  of 
the  express  company  in  its  express  cars  or  baggage  cars  at  season 
ticket  rates,  which  were  less  than  regular  rates  paid  by  the  express 
company  npon  condition  that  the  express  company  and  its  mes- 
sengers should  assume  all  risks  of  accidents  and  injuries  resulting 
therefrom,  and  hold  the  railroad  free  and  discharged  from  all  claims 
and  demands  in  any  way  growing  out  of  any  injuries  received  by 
such  messengers  while  being  thus  transported.  In  pursuance  of 
that  agreement,  the  plaintiff,  on  February  9,  1885,  at  the  request 
of  the  express  company,  executed,  and  the  express  company  de- 
livered to  the  defendant,  the  following  agreement:  — 

"Old  Colony  Railroad  Company,  Boston,  February  9,  1885.  Whereas, 
under  the  rules  of  the  Old  Colony  Railroad  Company,  passengers  are  not 
allowed  to  ride  in  the  baggage  cars  of  any  trains,  but  the  undersigned,  holder 
of  a  season-ticket,  being  engaged  in  the  express  business,  is  desirous  of  riding 
in  such  car  for  the  more  convenient  despatch  of  his  business  as  an  expressman, 
it  is  understood  and  agreed  that,  in  consideration  of  said  company  allowing 
him  to  ride  in  baggage  cars  on  its  trains,  the  undersigned  will  assume  all  risk 
of  accidents  and  injuries  resulting  therefrom,  and  will  hold  said  company  free 
and  discharged  from  all  claims  and  demands  in  any  way  growing  out  of  any 
injuries  received  by  him  while  so  riding.'' 

The  agreement  was  sent  to  the  plaintiff,  with  a  letter  from  the 
superintendent  of  the  express  company  asking  him  to  sign  it,  and 
he  signed  it  unw^illingly,  but  did  so  because  he  understood  that,  if 
he  did  not,  the  railroad  company  would  demand  that  he  should  be 
removed  by  the  express  company  from  his  position  as  messenger. 
Thfi  defendant  thereupon  issued  to  the  express  company,  for  the 
jjlaintiiT,  a  season  ticket,  which  contained  a  provision  that  "it  is 
not  to  be  used  except  on  express  business,  and  if  so  used  will  be 
forfeited,"  and  differed  from  those  issued  to  passengers  generally  in 
liaving  stamped  npon  it  this  provision:  "The  holder  of  this  ticket, 
having  released  the  company  from  all  liability,  will  be  permitted  to 
rifle  in  the  baggage  car.  J.  Sprague,  Jr.,  General  I'asseuger 
Agent." 

It  was  contrary  to  the  rules  of  the  railroad  company  to  permit 
passengers  to  ride  in  baggage  cars  and  express  cars,  and  this  i)rovi- 
Hion  was  stamj)cd  upon  tlie  ticket  for  tlie  jjurjjose  of  showing  to  con- 
ductors that  the  person  holding  tliat  ticket  liad  released  the  company 
from  liability,  and  tlicrefore  the  rule  need  not  be  enforced  in  this 


LIMITATION   OF   LIABILITY.  649 

case.  While  the  plaintiff  was  riding  in  a  baggage  car,  as  an  express 
messenger,  under  the  above  arrangement  with  the  express  company 
and  contract  signed  by  himself,  and  holding  a  ticket  thus  stamped, 
he  received  his  injuries.  The  following  regulation,  signed  by  the 
defendant's  general  manager,  was  posted  and  enforced  in  the  bag- 
gage car  in  which  the  plaintiff  rode  while  in  the  employment  of  the 
express  company  as  a  messenger  on  the  defendant's  road  and  at  the 
time  of  the  accident  :  — 

"  Old  Colony  Railroad.  Notice.  No  passenger  will  be  allowed  to  ride  in 
the  baggage  car  of  any  train  unless  he  has  signed  a  release  discharging  the 
company  from  all  claims  and  demands  in  any  way  growing  out  of  any  acci- 
dent or  injuries  while  riding  in  such  car.  Conductors  and  baggage-masters 
will  be  particular  at  all  times  not  to  permit  any  passenger  to  ride  in  the  bag- 
gage car  without  the  special  permit,  which  will  be  stamped  on  the  tickets  of 
those  who  have  complied  with  the  regulations.  This  rule  must  be  strictly 
enforced." 

Two  other  express  companies  —  one  a  local  company  which  had  no 
messenger  in  charge  of  its  express  matter,  the  same  being  cared  for 
by  the  messengers  of  the  other  companies,  and  the  other  the  Ver- 
mont and  Canada  Express,  which  had  a  messenger  riding  in  the 
baggage  car  uader  this  regulation  —  were  doing  business  over  that 
portion  of  the  defendant's  road  during  the  year  1885,  and  at  the  time 
of  the  accident.  The  express  business  over  the  defendant's  railroad 
was  carried  on  in  the  baggage  car  attached  to  its  passenger  train,  by 
messengers  riding  therein,  under  agreements  and  upon  tickets  like 
that  signed  and  held  by  the  plaintiff. 

The  defendant  contended  that,  upon  the  above  facts,  the  plaintiff 
could  not  recover,  and  asked  the  judge  to  rule  :  "1.  The  agreement 
and  release  is  a  bar  to  the  plaintiff's  recovery.  2.  If  the  release  is 
void  and  not  a  bar,  the  plaintiff  was,  as  a  passenger,  guilty  of  con- 
tributory negligence  by  being  in  the  baggage  car,  contrary  to  the 
known  reasonable  regulation  that  passengers  were  not  allowed  to 
ride  in  the  baggage  car.  3.  On  the  whole  evidence,  the  plaintiff  is 
not  entitled  to  recover,  and  the  verdict  should  be  for  the  defendant." 

The  judge  declined  to  rule  as  requested,  but  ruled  that  the  plain- 
tiff was  entitled  to  recover,  notwithstanding  the  regulation  and 
agreement,  and  submitted  the  case  to  the  jury  upon  the  question  of 
damages  only.  The  jury  returned  a  verdict  for  the  plaintiff  for 
$10,000;  and  the  defendant  alleged  exceptions. 

W.  Allen,  J.  The  rules  of  the  defendant  prohibited  passengers 
from  riding  in  baggage  cars,  and  the  plaintiff  had  no  right  as  a  pas- 
senger to  ride  where  he  was  riding  at  the  time  he  was  injured.  He 
was  there  under  a  special  contract,  by  which,  in  consideration  that 
the  defendant  would  allow  him  to  ride  in  the  baggage  cars,  he 
assumed  all  risk  of  accident  and  injuries  resulting  therefrom,  and 
agreed  to  hold  the  defendant  free  and  discharged  from  all  claims 
and  demands  growing  out  of  any  injury  received  by  him  while  so 


650  CARRIERS   OF   PASSENGERS. 

riding.     The  parties  plainly  intended  to  include  injuries  resulting 
from  the  negligence  of  the  defendant's  servants. 

We  need  not  consider  whether  the  contract  would  be  construed  or 
held  to  include  injuries  to  which  riding  in  the  baggage  car  did  not 
contribute.  There  was  evidence  tending  to  show  that  the  plaintiff 
would  not  have  been  injured  had  he  been  in  a  passenger  car,  and 
that  his  presence  in  the  baggage  car  directly  contributed  to  the 
injury.  The  ruling  of  the  court  ordering  a  verdict  for  the  plaintiff 
was  a  ruling  that  the  plaintiff  was  entitled  to  recover  for  an  injury 
caused  by  the  negligence  of  the  defendant's  servants,  although  his 
riding  in  the  baggage  car  contributed  to  the  injury.  In  considering 
the  correctness  of  this  ruling,  the  contract  of  the  plaintiff  must  be 
taken  to  have  been,  that  he  would  assume  the  risk  of  injury  from 
the  negligence  of  the  defendant's  servants  to  which  his  riding  in 
the  baggage  car  under  the  permission  given  by  the  defendant  should 
contribute.  The  objection  is,  that  the  contract  is  void,  as  without 
consideration,  as  unreasonable,  and  as  against  public  policy.  We 
see  no  objection  to  the  contract  as  construed  and  ajjplied  in  this 
case. 

It  was  the  duty  of  the  defendant  as  a  carrier  of  passengers  to 
transport  persons  over  its  road  on  their  paying  the  established  fare, 
and  to  see  that  its  servants  used  due  care  to  secure  the  safety  of  its 
passengers.  It  was  its  duty  to  give  to  persons  paying  the  estab- 
lished rates  tickets  which  would  be  evidence  of  their  right  to  car- 
riage, and  of  the  defendant's  obligation  to  carry  them  with  due 
care.  The  defendant  was  ready  to  do  this,  and  did  sell  to  the 
plaintiff  a  season  ticket  which  gave  to  hira  all  the  rights  of  a  pas- 
senger. The  contract  in  question  was  made  to  give  him  a  right 
which  did  not  belong  to  him  as  a  passenger.  The  plaintiff',  having 
the  rights  of  a  passenger,  desired  to  ride  in  a  baggage  car.  The 
regulations  of  the  defendant,  as  well  as  personal  prudence,  forbade 
him  to  ride  there,  and,  if  he  had  attempted  to  do  so,  he  not  only 
would  have  assumed  all  the  risks  of  injuries  resulting  therefrom, 
but  would  have  been  liable  to  be  expelled  from  the  car  by  the 
defendant. 

It  is  difficult  to  see  upon  what  ground  it  can  be  ooiitondod  tliat 
an  agreement  of  the  plaintiff,  that,  in  consideration  that  the  dcft'ud- 
ant  would  permit  him  to  ride  in  the  baggage  car,  he  would  assume 
all  risk  of  injuries  resulting  therefrom,  is  unreasonable  or  illegal. 
The  df^femlant  was  under  no  obligation  to  give  the  permission,  and 
th«;  fffcct  of  the  i^laintiff's  agreement  was  only  that  the  liability  of 
the  defendant  should  not  be  increased  by  the  permission  that  the 
plaintiff,  if  he  sliould  be  injured  in  consequence  of  being  in  the 
baggage  car,  should  nut  be  entitled  to  recover  damages  of  the  de- 
fendant, on  the  ground  that  lie  was  there  ])y  its  jiermission.  The 
contract  did  not  diminish  the  liability  of  the  defendant.  It  left  the 
risk  assumed  by  the  plaintiff  in  riding  in  the  baggage  car  what  it 


LIMITATION   OF   LIABILITY.  651 

would  have  been  without  the  contract ;  it  only  secured  him  against 
being  ejected  from  the  car. 

The  question  of  the  right  of  carriers  to  limit  their  liability  for 
negligence  in  the  discharge  of  their  duty  as  carriers  by  contracts 
with  their  customers  or  passengers  in  regard  to  such  duties,  does 
not  arise  under  this  contract  as  construed  in  this  case.  See  Rail- 
road Co.  V.  Lockwood,  17  Wall.  357;  Griswold  v.  New  York  &  New 
England  Railroad,  53  Conn.  371.  It  was  not  a  contract  for  carriage 
over  the  road,  but  for  the  use  of  a  particular  car.  The  consider- 
ation of  the  plaintiff's  agreement  was  not  the  performance  of  any- 
thing by  the  defendant  which  it  was  under  any  obligation  to  do,  or 
which  the  plaintiff  had  any  right  to  have  done.  It  was  a  privilege 
granted  to  the  plaintiff.  The  plaintiff  was  not  compelled  to  enter 
into  the  contract  in  order  to  obtain  the  rights  of  a  passenger. 
Having  these  rights,  he  sought  something  more.  The  contract  by 
which  he  obtained  what  he  sought  did  not  impair  his  rights  as  a 
passenger,  and  he  was  under  no  compulsion  to  enter  into  it. 

It  is  contended  that  the  plaintiff,  as  the  servant  of  the  express 
company,  had  a  right,  by  statute,  to  ride  in  the  baggage  car,  and 
that,  therefore,  the  case  comes  within  the  decisions  that  it  is  un- 
reasonable, and  against  public  policy,  for  a  person,  as  a  condition 
of  his  becoming  a  passenger  on  a  railroad,  to  agree  that  he  will  take 
the  risk  of  the  negligence  of  the  servants  of  the  railroad  in  trans- 
porting him.  The  express  company  is  a  common  carrier,  and  it  is 
not  contended  that  a  railroad  corporation  is  bound  to  transport,  in 
the  baggage  cars  of  its  passenger  trains,  the  merchandise  and  ser- 
vants of  another  common  carrier,  unless  required  to  do  so  by  some 
statute.  See  Sargent  v.  Boston  &  Lowell  Railroad,  115  Mass.  416 
[76] ;  Express  Cases,  117  U.  S.  1. 

The  statute  relied  on  is  c.  112,  §  188,  of  the  Public  Statutes, 
which  is  in  these  words:  "Every  railroad  corporation  shall  give  to 
all  persons  or  companies  reasonable  and  equal  terms,  facilities, 
and  accommodations  for  the  transportation  of  themselves,  their 
agents  and  servants,  and  of  any  merchandise  and  other  property 
upon  its  railroad,  and  for  the  use  of  its  depot  and  other  buildings 
and  grounds,  and,  at  any  point  where  its  railroad  connects  with 
another  railroad,  reasonable  and  equal  terms  and  facilities  of  inter- 
change." The  statute  cannot  be  construed  to  require  railroad  cor- 
porations to  discriminate  in  favor  of  express  companies,  and  to  carry 
their  merchandise  and  messengers  in  the  baggage  cars  of  passenger 
trains  on  reasonable  terms,  equally  favorable  to  all  express  com- 
panies. If  that  were  the  meaning  of  the  statute,  no  questions  as  to 
the  equa,lity  of  the  terms  given  to  the  plaintiff  or  the  company  he 
represented  would  arise.  The  same  contract  was  required  of  all 
other  express  messengers  who  rode  in  baggage  cars.  The  only 
question  that  would  arise  is  whether  the  terms  granted  were 
reasonable. 


652  CARRIERS   OF   PASSENGERS. 

The  fact  that  the  plaintiff  was  riding  in  the  baggage  car  as  au 
express  messenger,  in  charge  of  merchandise  which  was  being 
transported  there,  shows  more  clearly  that  the  contract  by  the 
express  company  and  the  plaintiff  was  not  unreasonable  or  against 
public  policy.  He  was  there  as  a  servant,  engaged  with  the  ser- 
vants of  the  railroad  corporation  in  the  service  of  transportation  on 
the  road.  His  duties  Avere  substantially  the  same  as  those  of  the 
baggage-master  in  the  same  car;  the  latter  relating  to  merchandise 
carried  for  passengers,  and  the  former  to  merchandise  carried  for 
the  express  company.  His  actual  relations  to  the  other  servants 
of  the  railroad  corporation  engaged  in  the  transportation  were  sub- 
stantially the  same  as  those  of  the  baggage-master,  and  would  have 
been  the  same  had  he  been  paid  by  the  corporation  instead  of  by  the 
express  company.  Had  the  railroad  done  the  express  business,  the 
messenger  would  have  been  held  by  law  to  have  assumed  the  risk 
of  the  negligence  of  the  servants  of  the  railroad. 

It  does  not  seem  that  a  contract  between  the  express  company 
and  the  plaintiff  on  the  one  hand,  and  the  defendant  on  the  other, 
that  the  express  messenger,  in  performing  his  duties,  should  take 
the  same  risk  of  injury  from  the  negligence  of  the  servants  of  the 
railroad  engaged  in  the  transportation  that  he  would  take  if  em- 
ployed by  the  railroad  to  perform  the  same  duties,  would  be  void 
as  unreasonable  or  as  against  public  policy.  When  we  add  the  con- 
siderations that  the  plaintiff  was  a  passenger  whose  rights  as  such 
were  not  impaired  by  the  agreement,  and  that  the  agreement  was  to 
assume  the  risk  of  injuries  resulting  from  his  riding  in  baggage 
cars,  in  consideration  of  being  permitted  to  ride  there  to  conduct 
the  express  business,  it  seems  clear  that  the  contract  is  a  valid  and 
sufficient  defence  to  an  action  against  the  defendant  for  injuries 
resulting  from  the  negligence  of  the  defendant's  servants,  to  which 
the  fact  tliat  the  plaintiff'  was  riding  in  the  baggage  car  under  the 
agreement  contributed. 

Exceptions  sustained. 


QUIMBY  V.    BOSTON,    ktc.    R.    CO. 
150  Mass.  .3«5.     1800. 

Tout  for  personal  injuries  occasioned  to  the  plaintiff  in  an  acci- 
dent upon  the  defendant's  railroad,  through  the  alleged  negligence  of 
its  Korvants.  Trial  in  the  Superior  Court,  before  Mason,  J.,  who 
n-portcd  the  case  for  the  determination  of  this  court,  in  substance 
as  follf)ws :  — 

It  was  admitted  that  at  the  time  when  tlie  injuries  were  received 
the  plaintif!  was  travelling  upon  a  free  pass  given  to  liim  at  his 


LIMITATION    OF   LIABILITY.  653 

solicitation  by  the  general  manager  of  the  defendant  corporation. 
The  face  of  the  pass  bore  the  following :  — 

"  1062.  Trip  Pass.  Boston  and  Maine  Raih-oad.  Pass  Asa  Quimby  and 
■wife,  Account  of  Boston  and  Maine  R.  R.,  from  Salem  to  Concord,  N.  H., 
provided  he  signs  the  agreement  on  the  back  hereof.  Good  until  May  20, 
1886,  and  not  good  for  passage  in  the  opposite  direction.  Boston,  April  20, 
1886.     Jas.  T.  Furber,  Gen'l  Manager." 

The  face  of  the  pass  also  bore  upon  its  left-hand  margin  the 
words:    ''Kead  the  other  side." 

Upon  the  back  of  the  pass  was  the  following:  — 

"  1886.  Agreement.  In  consideration  of  being  given  this  free  ticket  by 
the  Boston  and  JNlaine  Raihoad,  I,  the  undersigned,  liereby  agree  to  assume 
all  risk  of  accident,  of  every  name  and  nature,  which  may  happen  to  me  while 
travelling  on,  or  getting  on  or  getting  off,  the  trains  of  said  railroad  on  which 
this  ticket  is  honored  for  passage,  by  which  I  may  be  injured  in  my  person, 
or  for  the  loss  of  or  damage  to  any  of  my  property,  being  transported  free  of 
chai'ge,  in  the  same  train  with  myself.  [Here  followed  a  blank  space  for  the 
"  Signature  of  holder  of  this  free  ticket."]  If  this  free  ticket  is  presented  by 
any  other  than  the  person  whose  signature  appears  above,  conductors  will  take 
it  up  and  collect  fare." 

The  pass  had  not  been  signed  by  the  plaintiff,  but  he  was  travel- 
ling upon  it  when  his  injuries  were  received.  He  had  tendered  it 
to  the  conductor  of  the  train,  who  had  honored  it  as  good  for  his 
passage,  and  had  twice  puuched  it.  No  oral  testimony  was  intro- 
duced as  to  whether  the  plaintiff  had  read  or  had  not  read  the 
language  printed  upon  the  pass. 

The  defendant  admitted  the  negligence  of  its  servants,  but  con- 
tended that  it  was  not  liable  to  the  plaintiff  by  reason  of  the  fact 
that  he  was  riding  upon  the  free  pass  when  injured;  and  asked  the 
judge  to  instruct  the  jury,  that,  upon  the  above  facts,  the  plaintiff 
could  not  maintain  his  action;  and  the  judge,  being  of  the  opinion 
that  the  action  could  not  be  maintained,  submitted  the  ease  on  the 
question  of  damages  only  to  the  jury,  who  returned  a  verdict  assess- 
ing the  plaintiff's  damages. 

If  upon  the  above  facts  the  plaintiff  was  entitled  to  recover,  judg- 
ment was  to  be  entered  upon  the  verdict;  otherwise,  judgment  was 
to  be  entered  for  the  defendant. 

Devexs,  J.  When  the  plaintiff  received  his  injury,  he  was 
travelling  upon  a  free  pass,  given  him  at  his  own  solicitation  and 
as  a  pure  gratuity,  upon  which  was  expressed  his  agreement  that 
in  consideration  thereof  he  assumed  all  risk  of  accident  which  might 
happen  to  him  while  travelling  on  or  getting  on  or  off  the  trains  of 
the  defendant  railroad  corporation  on  which  the  ticket  might  be 
honored  for  passage.  The  ticket  bore  on  its  face  the  Avords,  "Pro- 
vided he  signs  the  agreement  on  the  back  hereof."  In  fact,  the 
agreement  was  not   signed   by  the   plaintiff,   he  not   having  been 


654  CARRIERS    OF   PASSENGERS. 

required  to  do  so  by  the  conductor,  who  honored  it  as  good  for  the 
passage,  and  who  twice  punched  it.  The  fact  that  the  phiiutift'  had 
not  signed  it,  and  was  not  required  to  sign  it,  we  do  not  regard  as 
important.  Having  accepted  the  pass,  he  must  have  done  so  on  the 
conditions  fully  expressed  therein,  whether  he  actually  read  them 
or  not.  Squire  V.  >;ew  York  Central  Railroad,  98  INIass.  '2?>\);  Hill 
t'.  Boston,  Hoosac  Tunnel,  &  Western  Kailroad,  14-4  Mass.  284; 
Boston  &  Maine  Railroad  v.  Chipman,  146  Mass.  107. 

The  object  of  the  provision  as  to  signing  is  to  furnish  complete 
evidence  that  the  person  to  whom  the  pass  is  issued  assents  thereto; 
but  one  who  actually  avails  himself  of  such  a  ticket,  and  of  the 
privileges  it  confers,  to  secure  a  passage,  cannot  be  allowed  to  deny 
that  he  made  the  agreement  expressed  therein  because  he  did  not 
and  was  not  required  to  sign  it.  Gulf,  Colorado,  &  Santa  Fe  Rail- 
way V.  McGown,  05  Texas,  640,  643;  Illinois  Central  Railroad  r. 
Read,  37  111.  484;  Wells  i'.  New  York  Central  Railroad,  24  N.  Y. 
181;  Perkins  v.  New  York  Central  Railroad,  24  N.  Y.  196.  If 
this  is  held  to  be  so,  the  case  presents  the  single  question  whether 
such  a  contract  is  invalid,  wluch  has  not  heretofore  been  settled  in 
this  State,  and  upon  which  there  has  been  great  contrariety  of 
opinion  in  different  courts.  If  the  common  carrier  accept  a  person 
as  a  passenger,  no  such  contract  having  Jjeen  made,  such  passenger 
may  maintain  an  action  for  negligence  in  transporting  him,  even  if 
he  be  carried  gratuitously.  Having  admitted  him  to  the  rights  of 
a  passenger,  the  carrier  is  not  permitted  to  deny  that  he  owes  to 
him  the  duty  which,  as  carrying  on  a  public  employment,  he  owes 
to  those  who  have  paid  him  for  the  service.  Todd  v.  Old  Colony  & 
F;ill  River  Railroad,  3  Allen,  18;  Commonwealth  i\  Vermont  & 
Massachusetts  Railroad,  108  Mass.  7;  Littlejohn  v.  Fitchburg  Rail- 
road, 148  Mass.  478;  Files  v.  Boston  &  Albany  Railroad,  149  ]\Iass. 
204;  Philad(dphia  &  Reading  Railroad  v.  Derby,  14  How.  468; 
Steamboat  New  World  v.  King,  16  How.  469  [572].  I'.ut  the 
question  whether  the  carrier  may,  as  the  condition  upon  wliich  he 
grants  to  the  passenger  a  gratuitous  passage,  lawfully  make  an 
agreement  with  him  by  which  the  passenger  must  bear  the  risks  of 
transportation,  obviously  differs  from  this. 

In  a  large  number  of  cases,  the  English  courts,  as  well  as  those 
of  New  York,  liave  held  tliat  where  a  drover  was  ptM-mitted  to 
accompany  animals  upon  what  was  called  a  free  pass,  issued  upon 
the  con<lition  that  the  user  should  bear  all  risks  of  transportation, 
he  could  not  maintain  an  action  for  an  injury  received  by  the  n(!gli- 
g<*nce  of  the  carric^r's  servants.  A  similar  rule  would,  without 
doiil)t,  be  ajtplied  where  a  servant,  from  the  ])eculiar  character  of 
goods,  such  as  delicate  machinery,  is  permitted  to  accompany  them, 
and  in  other  cases  of  that  nature.  That  passes  of  this  character  are 
free  paHnes  properly  so  called  lias  been  denied  in  other  cases,  as  the 
carriage  of  tlif- drovijr  is  a  part  of  tlie  contract  for  tlic  carriage  of 


LIMITATION    OF   LIABILITY.  655 

the  animals.  The  cases  on  this  point  were  carefully  examined  and 
criticised  by  Mr.  Justice  Bradley,  in  Railroad  Co.  v.  Lockwood,  17 
Wall.  357,  367 ;  and  it  is  there  held  that  such  a  pass  is  not  gratu- 
itous, as  it  is  given  as  one  of  tlie  terms  upon  which  the  cattle  are 
carried.  The  decision  is  put  upon  the  ground  that  the  drover  was 
a  passenger  carried  for  hire,  and  that  with  such  passenger  a  con- 
tract of  this  nature  could  not  be  made.  The  court,  at  the  conclusion 
of  the  opinion,  expressly  waives  the  discussion  of  the  question  here 
presented,  and,  as  it  states,  purposely  refrains  from  expressing  any 
opinion  as  to  what  would  have  been  the  result  had  it  considered  the 
plaintiff  a  free  passenger,  instead  of  one  for  hire.  Railway  Co.  v. 
Stevens,  95  U.  S.  655  [644] ,  in  which  the  same  distinguished  judge 
delivered  the  opinion  of  the  court,  is  put  upon  the  ground  that  the 
transportation  of  the  defendant,  although  not  paid  for  by  him  in 
money,  was  not  a  matter  of  charity  or  gratuity  in  any  sense,  but 
was  by  virtue  of  an  agreement  in  which  the  mutual  interest  of  the 
parties  was  consulted. 

Whether  the  English  and  Kew  York  authorities  rightly  or  wrongly 
hold  that  one  travelling  upon  a  drover's  pass,  as  it  is  sometimes 
called,  is  a  free  passenger,  they  show  that,  in  the  opinion  of  those 
courts,  a  contract  can  properly  be  made  with  a  free  passenger  that 
he  shall  bear  the  risks  of  transportation.  This  is  denied  by  many 
courts  whose  opinions  are  entitled  to  weight.  It  will  be  observed 
that  in  the  case  at  bar  there  is  no  question  of  any  wilful  or  mali- 
cious injury,  and  that  the  plaintiif  was  injured  by  the  carelessness 
of  the  defendant's  servants.  The  cases  in  which  the  passenger  was 
strictly  a  free  passenger,  accepting  his  ticket  as  a  pure  gratuity,  and 
upon  the  agreement  that  he  would  himself  bear  the  risk  of  trans- 
portation, are  comparatively  few.  They  have  all  been  carefully 
considered  in  two  recent  cases,  to  which  we  would  call  attention. 
These  are  Griswold  y.  New  York  &  New  England  Railroad,  53  Conn. 
371,  decided  in  1885,  and  that  of  Gulf,  Colorado,  «&;  Santa  Fe  Rail- 
road V.  McGown,  65  Texas,  640,  decided  in  1886,  in  which  the  pre- 
cise question  before  us  was  raised  and  decided,  after  a  careful 
examination  of  the  authorities,  and  opposite  conclusions  reached, 
by  the  highest  courts  of  Connecticut  and  of  Texas.  No  doubt 
existed  in  either  case,  in  the  opinion  of  the  court,  that  the  ticket  of 
the  passenger  was  strictly  a  gratuity,  and  it  was  held  by  the  former 
court  that,  under  these  circumstances,  the  carrier  and  the  passenger 
might  lawfully  agree  that  the  passenger  should  bear  the  risks  of 
transportation,  and  that  such  agreement  would  be  enforced,  while  the 
reverse  was  held  by  the  court  of  Texas.  We  are  brought  to  the  deci- 
sion of  the  question  unembarrassed  by  any  weight  of  authority  with- 
out the  Commonwealth  that  can  be  considered  as  preponderating. 

It  is  urged  on  behalf  of  the  plaintiff,  that,  while  the  relation 
of  passenger  and  carrier  is  created  by  contract,  it  does  not  fol- 
low that   the  duty  and  responsibility  of  the  carrier  is  dependent 


656  CARRIERS   OF   PASSENGERS. 

upon  the  contract;  that,  while  with  reference  to  matters  indifferent 
to  the  public,  parties  may  contract  according  to  their  own  pleasure, 
they  cannot  do  so  where  the  public  has  an  interest;  that,  as  certain 
duties  are  attached  by  law  to  certain  employments,  these  cannot  be 
waived  or  dispensed  with  by  individual  contracts;  that  the  duty  of 
the  carrier  requires  that  he  should  convey  his  passengers  in  safety ; 
and  that  he  is  properly  held  responsible  in  damages  if  he  fails  to  do 
so  by  negligence,  whether  the  negligence  is  his  own  or  that  of  his 
servants,  in  order  that  this  safety  may  be  secured  to  all  who  travel. 
It  is  also  said,  that  the  carrier  and  the  passenger  do  not  stand  upon 
an  equality;  that  the  latter  cannot  stand  out  and  higgle  or  seek 
redress  in  the  courts;  that  he  must  take  the  alternative  the  carrier 
presents,  or  practically  abandon  his  business  in  the  transfer  of 
merchandise,  and  must  yield  to  the  terms  imposed  on  him  as  a 
passenger;  that  he  ought  not  to  be  induced  to  run  the  risks  of 
transportation  by  being  allowed  to  travel  at  a  less  fare,  or  for  any 
similar  reason,  and  thus  to  tempt  the  carrier  or  his  servants  to 
carelessness  which  may  affect  others  as  well  as  himself;  and  that, 
in  few  words,  public  policy  forbids  thrt  contracts  should  be  entered 
into  with  a  public  carrier  by  which  he  shall  be  exonerated  from  his 
full  responsibility.  Most  of  this  reasoning  can  have  no  application 
to  a  strictly  free  passenger,  who  receives  a  passage  out  of  charity, 
or  as  a  gratuity. 

Certainly  the  carrier  is  not  likely  to  urge  upon  others  the  accept- 
ance of  free  passes,  as  the  success  of  his  business  must  depend  on 
his  receipts.  There  can  be  no  difficulty  in  the  adjustment  of  terms 
where  passes  are  solicited  as  gratuities.  When  such  passes  are 
granted  by  such  of  the  railroad  officials  as  are  authorized  to  issue 
them,  or  by  other  public  carriers,  it  is  in  deference  largely  to  the 
feeling  of  the  community  in  which  they  are  exercising  a  public 
employment.  The  instances  cannot  be  so  numerous  that  any  temp- 
tation will  be  offered  to  carelessness  in  the  management  of  their 
trains,  or  to  an  increase  in  their  fares,  in  both  of  which  subjects  the 
public  is  interested.  In  such  instances,  one  who  is  ordinarily  a 
common  carrier  does  not  act  as  such,  but  is  simply  in  the  position 
of  a  fjnitnltous  bfulee.  The  definition  of  a  common  carrier,  which  is 
that  of  a  pers(m  or  corporation  pursuing  the  public  employment  of 
conveying  goods  or  passengers  for  hire,  does  nut  apply  under  such 
circumstances.  The  service  which  he  undertakes  to  render  is  one 
which  he  is  under  no  obligation  to  perform,  and  is  outside  of  his 
regular  duties.  In  yielding  to  the  solicitation  of  the  passenger,  he 
consents  for  tlie  time  being  to  put  off'  his  public  employment,  and 
to  do  that  wliidi  it  does  not  impose  upon  him.  The  plaintiff  was  in 
no  way  constrained  to  accept  the  gratuity  of  the  defendant;  it  had 
bffn  yielded  to  him  only  on  his  own  solicitation.  AVlion  he  did, 
there  is  no  rule  of  public  policy,  we  think,  that  ])reveiitod  tlu;  carrier 
from  prescribing,  as  the  condition  of  it,  that  it  sliouM  not  be  com- 


LIMITATION    OF   LIABILITY.  657 

pelled,  in  addition  to  carrying  the  passenger  gratuitously,  to  be 
responsible  to  him  in  damages  for  the  negligence  of  its  servants. 
It  is  well  known  that,  with  all  the  care  that  can  be  exercised  in  the 
selection  of  servants  for  the  management  of  the  various  appliances 
of  a  railroad  train,  accidents  will  sometimes  occur  from  momentary 
carelessness  or  inattention.  It  is  hardly  reasonable  that,  beside  the 
gift  of  free  transportation,  the  carrier  should  be  held  responsible 
for  these,  when  he  has  made  it  the  condition  of  his  gift  that  he 
should  not  be.  Nor,  in  holding  that  he  need  not  be  under  these 
circumstances,  is  any  countenance  given  to  the  idea  that  the  carrier 
may  contract  with  a  passenger  to  convey  him  for  a  less  price  on 
being  exonerated  from  responsibility  for  the  negligence  of  his  ser- 
vants. In  such  a  case  the  carrier  would  still  be  acting  in  the  public 
employment  exercised  by  him,  and  should  not  escape  its  responsi- 
bilities, or  limit  the  obligations  which  it  imposes  upon  him. 

In  some  cases  it  has  been  held  that  while  a  carrier  cannot  limit 
his  liability  for  gross  negligence,  which  has  been  defined  as  his  own 
personal  negligence  (or  that  of  the  corporation  itself,  where  that  is 
the  carrier),  he  can  contract  for  exemption  from  liability  for  the 
negligence  of  his  servants.  It  may  be  doubted  whether  any  such 
distinction  in  degrees  of  negligence,  in  respect  to  the  right  of  a 
carrier  to  exempt  himself  from  responsibility  therefor,  can  be  profit- 
ably made  or  applied.  Steamboat  New  World  v.  King,  16  How. 
469.  It  is  to  be  observed,  however,  that  in  the  case  at  bar  the  injury 
occurred  through  the  negligence  of  defendant's  servants,  and  not 
through  any  failure  on  the  part  of  the  corporation  to  prescribe 
proper  rules  or  to  furnish  proper  appliances  for  the  conduct  of  its 
business.  We  are  of  opinion  that  where  one  accepts,  purely  as 
a  gratuity,  a  free  passage  in  a  railroad  train,  upon  the  agreement 
that  he  will  assume  all  risk  of  accident  which  may  happen  to  him, 
while  travelling  in  such  train,  by  which  he  may  be  injured  in  his 
person,  no  rule  of  public  policy  requires  us  to  declare  such  contract 
invalid  and  without  binding  force.  By  the  terms  of  the  report 
there  must,  therefore,  be 

Judgment  for  the  defendant. 


JACOBUS  V.    SAINT  PAUL,  etc.  K.   CO. 

20  Minn.  125.     1S73. 

The  plaintiff  brought  this  action  to  recover  damages  for  personal 
injury  sustained  while  travelling  as  a  passenger  upon  defendant's 
railroad,  occasioned,  as  is  alleged,  by  the  negligence  of  the  defend- 
ant. The  defences  were,  that  the  plaintiff  was  travelling  upon  a 
free  pass  or  ticket,  issued  to  him  without  consideration,  by  accept- 

42 


658  CARRIERS    OF   PASSENGERS. 

ing  which  he  assumed  all  risks  of  accident;  that  contrary  to  the 
regulation  of  the  defendant,  well  knoAvn  to  plaintiff,  he  was  riding 
in  a  baggage  car,  when  the  accident  occurred;  that  plaintiff's  own 
negligence  contributed  to  the  injury,  without  any  negligence  of 
defendant. 

The  cause  was  tried  in  the  Court  of  Common  Pleas  for  Ramsey 
County,  resulting  in  a  verdict  for  the  plaintiff.  Defendant  moved 
to  set  aside  the  verdict,  and  for  a  new  trial,  upon  the  grounds: 
"1st.  That  the  verdict  is  not  justified  by  the  evidence,  and  is  con- 
trary to  law,  2d.  Errors  of  law  occurring  at  the  trial,  excepted 
to  by  the  defendant."  The  motion  was  denied,  and  defendant 
appeals  to  this  court.  The  same  points  are  made  in  this  court,  and 
are  so  fully  discussed  in  the  opinion,  that  no  further  statement  is 
necessary. 

Berky,  J.  The  plaintiff  brings  this  action  to  recover  damages 
for  injuries  occasioned  to  his  person  by  the  alleged  gross  negligence 
of  defendant's  servants  in  charge  of  defendant's  railway  train,  upon 
which  plaintiff  was  travelling.  Plaintiff  was  riding  upon  a  free 
pass,    which,    together    with  the  conditions  indorsed,    is   in  these 

words,  viz. :  — 

"St.  Paul  &  Chicago  Railway. 
"  Pass  D.  Jacobus  upon  the  conditions   indorsed  hereon,  until  Dec.  31st, 
1871,  unless  otherwise  ordered.     Not  transferable. 

"  D.  C.  SiiEPARD,  Chf.  Eng.  and  Supt. 

"  Conditions. 
*'  The  person  who  accepts  and  uses  this  free  ticket  thereby  assumes  all  risk 
of  accident,  and  agrees  that  the  company  shall  not  be  liable  under  any  circum- 
stanct's,  whether  of  negligence  of  its  agents  or  otherwise,  for  an  injury  of  the 
person,  or  for  any  loss  or  injury  to  his  property,  while  using  or  having  the 
benefit  of  it." 

Upon  the  pleadings  and  the  charge  of  the  court,  the  first  question 
arising  in  this  case  is,  whether  the  pass,  with  its  conditions,  pro- 
tects defendant  from  liability  for  injury  received  by  plaintiff  while 
riding  upon  such  pass,  even  though  the  injury  was  caused  by  gross 
negligence  upon  defendant's  part.  In  our  opinion,  this  question 
sliould  be  answered  in  the  negative.  For  the  reason  that  tlie  degree 
of  care  and  diligence  exacted  of  a  bailee  should  be  proportioned  to 
the  importance  of  the  business  and  of  the  interests  at  stake  (llalley 
V.  Poston  Ga.s  Light  Co.,  8  Gray,  131;  57  Me.  202),  "the  law  im- 
poses upon  the  common  carrier  of  passengers  the  greatest  care  and 
foresight  for  the  safety  of  his  passengers,  and  holds  him  liable  for 
the  .slightest  neglect."  McLean  v.  Pur])ank,  11  INIinn.  2.S.S.  And 
for  like  reasons  the  same  extreme  care  is  required,  though  the  pas- 
senger 1)6  carried  gratuitously.  Having  undertaken  to  carry,  the 
«bity  arises  to  carry  safely.  Phil.  &  Pleading  R.  R.  Co.  v.  Derby, 
11  Howard  (U.  S.),  486;  Xoltrm  v.  Western  Railway,  15  N.  Y. 
1  •'     532;;  Steamboat  New  World  v.  King,  10  How.    (U.  S.),   474 


LIMITATION    OF   LIABILITY.  659 

[572];  2  Eedlielcl  on  Railways,  184-5,  and  notes;  Perkins  v.  K.  Y. 
Central  R.  W.  Co.,  24  N.  Y.  200;  Todd  v.  Old  Col.  &  F.  R.  R.  Co., 
3  Allen,  21. 

In  the  case  at  bar,  however,  the  plaintiff  was  not  merely  a  gratu- 
itous passenger;  i.  e.,  a  passenger  carried  without  payment  of  fare 
or  other  consideration.  He  was  a  passenger  upon  a  free  pass 
expressly  conditioned  that  the  defendant  should  not  be  liable  to 
him  for  any  injury  of  his  person  while  he  was  using  or  having  the 
benefit  of  such  pass.  Does  this  circumstance  distinguish  his  case 
from  that  of  a  merely  gratuitous  passenger?  Upon  the  question 
whether  conditions  of  this  kind  are  valid  and  effectual  to  exonerate 
the  carrier  of  passengers,  the  adjudications  differ.  In  New  York, 
the  conditions  appear  to  be  held  sufficient  to  absolve  the  carrier 
from  liability,  even  for  the  gross  negligence  of  his  employees. 
Wells  V.  K  Y.  Central  Railway  Co.,  24  N.  Y.  181;  Perkins  v. 
Same,  ib.  196;  Bissell  v.  Same,  25  N.  Y.  442.  In  New  Jersey,  it 
is  held  that  such  conditions  are  good  as  against  ordinary  negli- 
gence, with  a  very  decided  intimation  that  the  exemption  from 
liability  comprehends  gross  negligence  also.  Kinney  v.  Cen.  R. 
R.  Co.,  34  N.  J.  513. 

In  Pennsylvania,  Illinois,  Indiana,  and  several  other  States,  the 
courts  hold  that  no  such  condition  will  avail  to  protect  the  carrier 
from  responsibility  for  the  gross  negligence  of  its  employees.  111. 
Central  Co.  v.  Read,  37  111.  484;  19  id.  136;  The  Ind.  Cen.  R. 
Co.  V.  Munday,  21  Ind.  48;  Penn.  R.  Co.  v.  McCloskey's  Adm'r, 
23  Pa.  532;  Mobile  &  Ohio  Railway  v.  Hopkins,  41  Ala.  489. 

There  are  two  distinct  considerations  upon  which  the  stringent 
rule  as  to  the  duty  and  liability  of  carriers  of  passengers  rests. 
One  is  a  regard  for  the  safety  of  the  passenger  on  his  own  account, 
and  the  other  is  a  regard  for  his  safety  as  a  citizen  of  the  State. 
The  latter  is  a  consideration  of  public  policy  growing  out  of  the 
interest  which  the  State  or  government  d.'S.  x>ci^'ens  2>'itrue  has  in  pro- 
tecting the  lives  and  limbs  of  its  subjects.  Sliearman  &  Redfield 
on  Negligence,  §  24;  C.  P.  &  A.  R.  Co.  v.  Curran,  19  Ohio  State, 
12;  Phil,  and  Reading  R.  R.  Co.  v.  Derby,  supra;  Steamboat  New 
World  V.  King,  supra;  Smith  v.  N.  Y.  Central  R.  Co.,  24  N.  Y. 
222;  111.  C.  R.  Co.  V.  Read,  supra;  Penn.  R.  Co.  v,  Henderson, 
51  Penn.  315;  Bissell  v.  N.  Y.  C.  R.  Co.,  25  N.  Y.  455,  per  Denio, 
J.;  N.  Y.  Central  R.  Co.  v.  Lockwood  (U.  S.  Supreme  Ct.),  not 
yet  reported. 

So  far  as  the  consideration  of  public  policy  is  concerned,  it  can- 
not be  overridden  by  any  stipulation  of  the  parties  to  the  contract 
of  passenger  carriage,  since  it  is  ^)«ra??iow7i^  from  its  very  nature.  No 
stipulation  of  the  parties  in  disregard  of  it,  or  involving  its  sacrifice 
in  any  degree,  can,  then,  be  permitted  to  stand.  Whether  the  case 
be  one  of  a  passenger  for  hire  —  a  merely  gratuitous  passenger  —  or 
of  a  passenger  upon  a  conditioned  free  pass,  as  in  this  instance,  the 


660  CARRIERS    OF    TASSENGERS. 

interest  of  the  State  in  the  safety  of  the  citizen  is  obviously  the 
same.  The  more  stringent  the  rule  as  to  the  duty  and  liability  of 
the  carrier,  and  the  more  rigidly  it  is  enforced,  the  greater  will  be 
the  care  exercised,  and  the  more  approximately  perfect  the  safety 
of  the  passenger.  Any  relaxation  of  the  rule  as  to  duty  or  liability 
naturally,  and  it  may  be  said  inevitably,  tends  to  bring  aboiit  a  cor- 
responding relaxation  of  care  and  diligence  upon  the  part  of  the 
carrier.  We  can  conceive  of  no  reason  why  these  propositions  are 
not  equally  applicable  to  passengers  of  either  of  the  kinds  above 
mentioned. 

It  is  said,  however,  that  it  is  unreasonable  ''to  suppose  that  the 
managers  of  a  railroad  train  will  lessen  their  vigilance  and  care  for 
the  safety  of  the  train  and  its  passengers  because  there  may  be  a 
few  on  board  for  whom  they  are  not  responsible."  In  the  first 
place,  if  this  consideration  were  allowed  to  prevail,  it  would  prove 
too  much ;  for  it  could  be  urged  with  equal  force  and  propriety  in 
the  case  of  a  merely  gratuitous  passenger,  as  in  a  case  like  this  at 
bar.  Yet,  as  we  have  seen,  no  such  consideration  is  permitted  to 
relieve  the  carrier  from  the  same  degree  of  liability  for  a  gratuitous 
passenger,  as  for  a  passenger  for  hire. 

Again,  suppose  (what  is  not  at  all  impossible  or  improbable,  as, 
for  instance,  in  case  of  a  free  excursion),  that  most  or  all  of  the  pas- 
sengers upon  a  train  were  gratuitous,  or  riding  upon  conditioned 
free  passes,  the  consideration  urged  would  be  no  answer  to  a  claim 
that  the  carrier  should  be  responsible.  A  general  rule  can  hardly 
be  based  upon  such  calculations  of  chances.  Moreover,  while  it 
might  not  ordinarily  occur  that  the  presence  of  a  free  passenger 
upon  a  train,  for  injury  to  whom  the  carrier  would  not  be  liable, 
would  tend  to  lessen  the  carrier's  sense  of  responsibility  and  his 
vigilance,  it  still  remains  true  that  the  greater  the  sense  of  respon- 
sibility, the  greater  the  care;  and  that  </«?/ relaxation  of  responsi- 
bility is  dangerous. 

Besides  these  considerations,  it  is  to  be  remembered  that  the  care 
and  vigilance  which  a  carrier  exercises  do  not  depend  alone  upon  a 
mere  sense  of  responsiljility,  or  upon  the  existence  of  an  abstract 
rule  imposing  stringent  obligiitions  u])on  him.  It  is  the  enforce- 
ment of  the  rule,  and  of  the  liability  imposed  thereby,  — the  mulct- 
ing of  the  carrier  for  his  negligence  which  brings  home  to  him  in 
tlie  most  practicable,  forcible,  and'  effectual  way,  the  necessity  for 
strictly  fulfilling  his  obligations. 

It  may  be  that  on  a  given  occasion  the  gratuitous  passenger,  or 
the  passenger  upon  a  free  pass,  is  the  only  person  injured  (as,  for 
aught  that  appears,  was  the  fact  in  this  instance),  or  the  only  i)arty 
who  will  proceed  against  tlic  carrier,  the  only  person  who  will 
jiractinally  enff)rce  ujton  tlie  carrier  the  importance  of  a  faithful 
dJHch.irge  of  liis  duty.  These  considerations,  as  it  seems  to  us, 
ought  to  be  decisive  ujion  tlie  jiointthat  sound  public  policy  requires 


LIMITATION    OF   LIABILITY.  661 

that  the  tvlIq  as  to  the  liability  of  the  carrier  for  the  safety  of  the 
passenger  should  not  be  relaxed,  though  the  passenger  be  gratui- 
tous, or,  as  in  this  case,  riding  upon  a  conditioned  free  pass.  It  is 
contended  that  there  was  no  proof  of  gross  negligence  on  defend- 
ant's part,  and  that,  therefore,  the  verdict  was  not  justified.  There 
was  evidence  that  the  train  was  a  mixed  train;  that  it  was  running 
from  forty  to  forty-five  miles  an  hour  according  to  the  plaintiff,  and, 
according  to  the  other  witnesses,  from  fifteen  to  twenty-two  miles 
an  hour;  that  the  lumber  was  upon  a  platform  car,  and  that  the 
stake  of  the  lumber  car,  in  consequence  of  the  breaking  of  which 
the  injury  occurred,  was  a  stick  of  butternut  cord  wood,  and  was 
cross-grained.  There  was  also  the  testimony  of  J.  T.  Maxfield,  of 
St.  Paul,  a  passenger  who  appears  to  be  an  intelligent  and  entirely 
disinterested  witness,  and  who  says,  "I  felt  anxious  about  the 
lumber  car.  I  was  afraid  of  the  speed.  ...  I  was  apprehensive 
of  danger  from  the  character  of  our  train.  I  spoke  to  the  brake- 
man  about  it.  .  .  .  Have  travelled  on  trains  a  good  deal."  And 
taking  all  these  facts  together  —  to  say  nothing  about  others  appear- 
ing in  the  case  —  it  cannot  be  said  that  there  was  not  evidence  in 
the  case  proper  to  be  considered  by  the  jury,  and  having  some 
reasonable  tendency  to  establish  negligence,  which  has  been  well 
described  as  being  a  negative  word  signifying  the  absence  of  such 
care  as  it  is  the  duty  of  the  negligent  party  to  exercise  in  the  par- 
ticular case.  Grill  v.  General,  &c..  Collier  Co.,  Law  Eep.,  1  C.  P. 
612;  Steamboat  New  World  v.  King,  siqjra.  We  will  go  further 
even,  and  say  that  the  evidence,  in  our  opinion,  had  a  reasonable 
tendency  to  establish  gross  negligence  in  the  sense  of  a  great  degree 
of  negligence.  Angell  on  Carriers,  §  22.  As  to  the  point  of  the 
degree  of  negligence  necessary  to  sustain  this  action,  it  is,  however, 
to  be  remarked,  in  view  of  the  stringent  rule  as  to  liability,  that 
where  the  question  is  between  a  railway  carrier  and  a  passenger, 
there  wovild  seem  to  be  no  occasion  for  the  ordinary  distinction  of 
different  degrees  of  negligence,  as  slight,  ordinary,  and  gross.  As 
is  well  and  forcibly  said  by  Mr.  Justice  Grier  in  Philad.  &  Eeading 
E,.  Co.,  supra:  "When  carriers  undertake  to  convey  persons  by  the 
powerful  but  dangerous  agency  of  steam,  public  policy  and  safety 
require  that  they  be  held  to  the  greatest  possible  care  and  dili- 
gence. And  whether  the  consideration  for  such  transportation  be 
pecuniary  or  otherwise,  the  personal  safety  of  the  passengers  should 
not  be  left  to  the  sport  of  chance  or  the  negligence  of  careless 
agents.  Any  negligence  in  such  cases  may  well  deserve  the  epithet 
of  'gross.'"  So  in  Steamboat  jSTcav  World  v.  King,  Mr.  Justice 
Curtis,  referring  to  the  doctrine  thus  announced,  says:  "We  desire 
to  be  understood  to  re-affirm  that  doctrine  as  resting  not  only  on 
public  policy,  but  on  sound  principles  of  law."  A  similar  view  of 
the  impracticability  of  a  distinction  between  different  kinds  of 
negligence  as  applicable  to  cases  of  this  kind  is  taken  in  Perkins  v. 


662  CARRIERS   OF   PASSENGERS. 

X.  V.  Central  R.  Co.,  sujva.  The  carrier  being  bound  to  exercise 
the  greatest  care,  and  being  liable  for  the  slightest  neglect,  what 
is  said  by  Rolfe,  B.,  in  Wilson  u.  Brett,  11  Mees.  &  "Welsby,  113, 
and  indorsed  by  Willis,  J.,  in  Grill  v.  General,  &c.,  Collier  Co., 
Law  Rep.,  1  C.  P.  012,  is  in  point  in  a  case  of  this  kind,  viz. :  that 
he  "could  see  no  difference  between  negligence  and  gross  negligence; 
that  it  was  the  same  thing  with  the  addition  of  a  vituperative  epi- 
thet." See  also  Angell  on  Carriers,  §  23,  and  Briggs  r.  Taylor, 
28  Vt.  ISO. 

It  is  further  argued  on  behalf  of  the  defendant,  that  the  plaintiff, 
by  his  own  negligence,  contributed  to  the  injury  sustained,  and  for 
that  reason  he  cannot  recover.  This  argument  is  founded  upon  the 
fact  that  plaintiff  was  in  the  baggage  car  at  the  time  of  the  acci- 
dent, and,  as  defendant  contends,  wrongfully  there.  But,  in  the 
first  place,  the  evidence  is  conflicting  as  to  whether  or  not  the  plain- 
tiff was  informed  of  the  rule  of  the  company  excluding  passengers 
from  the  baggage  car.  If  he  was  not  so  informed,  and  was  suffered 
to  remain  there  without  objection,  it  could  hardly  be  said  that  his 
presence  there  was  negligence.  Dunn  v.  Grand  Trunk  Railwa}', 
58  Maine,  187.  Again,  if  it  be  admitted  that  the  plaintiff  was  duly 
informed  of  the  regulation  of  the  company  excluding  passengers 
from  the  baggage  car,  the  evidence  shows  that  he  was,  at  least, 
permitted  to  remain  there  by  the  conductor.  If  he  was  thus  per- 
mitted to  remain,  so  that  he  was  there  with  the  knowledge  of  the 
conductor,  and  without  any  attempt  on  the  part  of  the  conductor  to 
enforce  the  company's  rule  by  removing  him,  his  presence  there 
would  not  be  such  negligence  as  would  exonerate  the  defendant 
from  the  consequences  of  its  negligence  or  want  of  care.  On  the 
contrary,  his  presence  there,  under  such  circumstances,  would  render 
it  the  duty  of  the  company,  in  view  of  the  fact  that  he  was  there, 
to  exercise  the  liighest  care  required  for  his  safety,  and  to  refrain 
from  the  slightest  neglect  tending  to  his  injury.  Dunn  v.  Grand 
Trunk  Railway,  suprn;  Isbel  v.  N.  Y.  »&  New  Haven  Railway  Co., 
27  Conn.  303;  2  Redfield  Railway  Cases,  474-502. 

Still,  again,  admitting  that  the  plaintiff"  was  cognizant  of  the 
rule  of  the  company  excluding  passengers  from  tlie  baggage  car, 
and  that  he  persisted  in  remaining  there  witliout  the  permission  or 
consent,  yet  with  tlie  knowledge  of  the  conductor,  and  was  guilty 
of  negligence  in  so  doing,  tliis  negligence  would  not  prevent  his 
recovering  unless  it  were  contributory  to  the  injury  received.  To 
l)e  thus  contributory,  in  a  legnl  sense,  it  must  be  a  pro.ritnnfe  cause 
of  the  injury, — that  is,  it  must  have  been  near  in  the  order  of 
causation  (Shearman  and  Redfield  on  Negligence,  37-3S),  and  it  must 
have  contributed,  to  some  extent,  directly  to  the  injury,  and  m\ist 
ha-.  lit  a  mere  tecluiiciil  or  formal  wrong  contributing  eitlier 

in<  .  f)r  remotely,  or  not  at  all,  to  the  injury.     Isl)el  r.  N.  Y. 

and  N.  ii.  K.  R.  Co.,  .s,ij,ra;  2  Redfield   R.   Casesj    |S.~,- I'.lO.      Now, 


TICKETS.  663 

notwithstanding  the  fault  or  negligence  of  the  plaintifE  in  remaining 
in  the  baggage  car,  and  admitting  that  the  baggage  car  was  a  place 
of  greater  danger  than  the  passenger  car,  and  that  the  plaintiff 
would  not  have  been  injured  if  he  had  not  been  there,  his  presence 
there  with  the  knowledge  of  the  conductor  made  it  defendant's  duty 
to  exercise  care  to  avoid  injuring  him  while  there;  and  if  injury 
resulted  from  want  of  such  care,  the  defendant  is  liable,  Isbel  v. 
N.  Y.  and  N.  H,  R.  Co.,  siqrra.  If  the  injury  resulted  from  want  of 
such  care,  i.e.,  negligence  on  defendant's  part  —  such  negligence, 
and  not  plaintiff's  fault  in  being  in  the  baggage  car,  would  be  the 
immediate  and  direct  —  the  more  proximate  —  cause  of  the  injury, 
and  defendant  would  be  responsible  for  the  same.  Isbel  v.  N.  Y. 
and  N.  H.  E.  Co.  stqjra;  C.  C.  and  C.  R.  Co.  v.  Elliott,  4  Ohio 
State,  476;  Shearman  and  Eedfield  on  Negligence,  §  25;  Keith  v. 
Pinkham,  43  Me.  503;  Huelsenkamp  v.  Citizens' Railway  Co.,  37 
Mo.  537;  Richmond  v.  Sac.  R.  R.  Co.,  18  Cal.  351;  Lackawanna 
and  Bloomsburg  R.  Co.  v.  Chenewith,  52  Penna.  386. 

In  our  opinion  there  was  evidence  in  the  case  for  the  considera- 
tion of  the  jury  in  reference  to  these  views  of  the  law,  and  from 
which  they  might  reasonably  find  that  plaintiff's  negligence  in  this 
case  was  not  contributory  to  the  injury  received  by  him. 

These  considerations  dispose  of  the  case,  the  result  being  that  the 
order  denying  a  new  trial  is  affirmed. 


7.    TICKETS. 

JEROME  V.  SMITH. 

48  Vt.  230.     1876. 

Case  for  ejecting  plaintiff  from  defendants'  cars. 

Wheeler,  J.  ......... 

As  the  case  states  that  certain  facts  appeared  on  the  trial  and 
others  were  found  by  special  verdict,  it  hangs  here  upon  the  correct- 
ness of  the  judgment  rendered  upon  all  these  facts.  If  on  these 
facts  the  plaintiff  was  wrongfully  in  the  defendants'  cars  at  the 
time  he  was  expelled,  the  judgment  was  right,  otherwise  not.  The 
right  to  eject  for  non-payment  of  fare  is  given  by  statute,  if  statute 
authority  can,  in  addition  to  common-law  rights  in  such  cases,  on 
any  ground  be  necessary.  The  real  question  is,  whether  there  was, 
in  fact,  such  non-payment.  When  the  plaintiff  bought  the  ticket 
at  Worcester,  with  coupons  attached,  entitling  the  holder  to  ride 
over  that  part  of  defendants'  road  he  was  riding  on  when  ejected,  he 
did  not  make  any  agreement  with  them  or  their  agents  that  they 
would  carry  him  in  person  over  it  as  carriers  agree  to  carry  particu- 


664  CARRIERS   OF   PASSENGERS. 

lar  packages  over  their  routes;  but  he  bought  what  was  symbolic 
evidence  of  a  right  that  whoever  should  have  it  might  ride,  aud 
what  any  other  person  could  use  as  well  as  he.  The  title  to  it,  and 
right  to  a  passage  upon  it,  would  pass  by  mere  delivery,  and  who- 
ever should  have  it  could  pay  the  fare  of  a  passenger  with  it  by 
delivering  it  in  payment;  but  the  mere  fact  of  having  had  it,  with- 
out having  it  to  deliver  in  payment  on  reasonable  request,  would 
not  entitle  any  one  to  the  passage,  any  more  than  having  a  sufficient 
amount  of  money  to  pay  the  fare  Avith,  without  paying  it,  would. 
When  he  entered  on  his  passage  over  the  defendants'  road,  he  had 
the  coupon  aud  tickets  which  would  pay  his  fare  throughout  his 
intended  journey  over  their  line,  and  if  he  had  delivered  the  coupon 
to  tlie  conductor  in  payment  of  his  fare  for  the  whole  of  that 
journey,  he  would  have  had  the  right  to  ride  the  whole  distance 
without  doing  or  paying  anything  more.  But,  according  to  the 
facts,  the  conductor  did  not  take  the  coupon  as  an  equivalent  for 
the  full  passage,  but  only  for  the  passage  so  far  as  he  was  to  go  as 
conductor,  and  gave  tlie  plaintiff  the  white  check  as  evidence  in  lieu 
of  the  coupon,  more  symbolic,  but  equally  effective  of  the  right  to 
a  passage  the  rest  of  the  way.  As  the  plaintiff  did  not  know  what 
the  symbols  of  the  check  each  meant,  so  probably  he  did  not  know 
what  those  on  the  ticket  and  those  on  the  coupon,  respectively, 
meant;  hut,  however  that  may  have  been,  such  checks  are  in  com- 
mon use  among  conductors  on  railroads,  as  evidence  of  the  right  to 
a  passage,  and  the  case  not  only  does  not  show  but  that  he  under- 
stood what  the  purpose  and  effect  of  this  one  was,  as  persons  ordi- 
narily would,  but  does  impliedly  show  that  he  did  so  understand, 
because  it  appears  that  he  searched  for  it  to  use  to  pay  his  fare  with 
when  he  saw  the  next  conductor  approaching  him  collecting  fares. 
And  although  it  was  delivered  to  him  only  by  placing  it  in  his  hat- 
band, as  he  did  not  object,  that  was  as  much  a  delivery  to  him  as 
jtlacing  it  in  his  ]a\>  or  in  his  hand  would  have  been,  and  was  suffi- 
cient to  invest  him  with  the  ownership  of  it,  and  to  bind  him  to 
take  care  of  it  as  his  own  property.  While  he  held  that  check  he 
had  not  paid  his  fare  beyond  where  the  conductor  was  to  go,  but 
liad  what  would  pay  it,  or  tliat  of  any  other  person,  the  rest  of  the 
way.  If  thf  conductor  had  not  given  him  anything,  or  had  given 
liim  sometliing  tliat  lie  could  not  use  to  pay  his  fare  witli,  he  would 
have  received  no  equivalent  for  his  coupon,  and  would  have  still 
l)een  entitled  to  his  passage  for  an  equivalent.  But  as  it  was  what 
lie  took  was  as  good  as  the  coupon  for  tlie  rest  of  his  journey,  and 
with  it  lif  was  situated  tlie  same  as  if  he  had  kei)t  the  coupon,  or 
if  he  had  bought  the  chock  of  a  station-agent  or  conductor  at  the 
commencement  of  his  journey,  as  evidence  of  his  right  to  a  passage, 
and  shown  it  to  one  conduftor  and  was  keeping  it  to  show  to  the 
next  one.  In  either  case,  the  duty  of  keeping  it  safely  would  be 
upon   him.      When  he  had   lost  it,  tlm  loss  was  his,  and  he  was 


TICKETS.  665 

situated  as  lie  would  have  been  if  the  coupon  had  been  returned  to 
him,  and  he  had  lost  that,  and  as  any  one  would  be  who  had  bought 
a  ticket  to  an  opera  or  a  lecture,  or  that  would  entitle  the  holder  of 
it  to  any  other  privilege,  and  had  lost  it.  Having  lost  it,  he  was 
called  upon  by  the  proper  conductor  to  pay  his  fare.  He  had  not 
any  ticket  or  check  to  pay  it  with,  and  refused  to  pay  it  in  money, 
consequently,  there  was  a  refusal  to  pay  it  at  all,  and  the  conductor 
rightfully  expelled  him  from  the  train. 

The  books  and  cases  cited  in  behalf  of  the  plaintiff  are  not,  ap- 
parently, contrary  to  these  views.  Thus,  in  Pittsburgh,  etc.,  "R.  R. 
V.  Hennigh,  39  Ind.  509,  the  first  conductor  took  up  the  ticket  and 
gave  no  check  nor  anything  showing  a  right  to  a  passage,  and  the 
next  one  ejected  the  passenger  for  want  of  anything  to  show  pay- 
ment. The  company  was  very  properly  held  liable  for  that  expul- 
sion. In  Palmer  v.  Charlotte,  etc.  R.  R.  Co.,  3  S.  C.  580,  the 
plaintiff  had  a  ticket  which  gave  him  the  right  to  stop  over  at 
Columbia-,  the  conductor  took  it  up  and  gave  him  a  check  that  did 
not  show  any  right  to  stop  over.  He  stopped  over,  and,  on  presen- 
tation of  the  check  on  the  next  train,  was  expelled.  The  court  said 
that  the  conductor  had  no  right  to  take  up  the  ticket  unless  he 
placed  the  passenger  in  as  good  condition  as  he  was  in  before,  by 
giving  a  check  or  token  evidencing  his  right  to  stop  over  and  take 
a  subsequent  train.  In  Maroney  v.  Old  Colony  R.  R.  Co.,  106 
Mass.  153,  the  plaintiff  had  a  ticket  that  was  purchased  of  the 
agent  of  the  defendants,  and  was  apparently  good  for  any  regular 
train,  and  he  was  ejected  from  a  regular  train  because  by  some  rule, 
of  which  he  had  no  notice,  it  was  intended  only  for  a  special  train. 
In  Hamilton  v.  Third  Av.  R.  R.  Co.,  53  N.  Y.  25,  the  plaintiff  paid 
his  fare  and  received  nothing  to  show  he  was  entitled  to  a  passage, 
and  was  ejected  before  he  had  the  passage  for  which  he  had  ex- 
pressly paid.  In  Moore  v.  Fitchburg  R.  R.  Co.,  4  Gray,  465,  the 
plaintiff  had  bought  a  ticket  and  given  it  up  on  his  passage  without 
receiving  any  evidence  of  a  right  to  a  passage  in  return,  and  was 
expelled  before  he  had  the  rest  of  his  passage.  The  other  books 
and  cases  cited  for  the  plaintiff,  so  far  as  observed,  relate  to  the 
general  rules  of  liability  of  carriers  in  respect  to  the  persons  and 
baggage  of  passengers  who  have  with  money  or  by  tickets  paid  for 
and  entered  upon  passage  for  some  particular  journey,  and  do  not 
bear  directly  upon  the  question  in  this  case.  On  the  other  hand, 
numerous  authorities  among  those  cited  in  behalf  of  the  defendants 
sustain  these  views  more  or  less  directly.  Among  those  most  nearly 
in  point  are  Hamilton  v.  N.  Y.  C.  R.  R.,  51  N.  Y.  100;  Standish  v. 
Narragansett  Steamship  Co.,  Ill  Mass.  512;  Townsend  v.  N.  Y. 
C.  &  H.  R.  R.  R.  Co.,  56  N.  Y.  295  [691];  Duke  and  Wife  v.  G. 
W.  R.  R.  Co.,  14  Up.  Can.  C.  B.  369.  According  to  these  con- 
clusions the  judgment  for  the  defendants  was  correct. 


666  CAKRIEKS   OF   PA3SEXGEKS. 


STATE   V.    OVERTON. 
•24  X.  J.  L.  435.     1S54. 

The  Chief  Justice.  The  defendant  was  convicted  in  the  Oyer 
and  Terminer  of  Morris,  of  an  assault  and  battery  upon  Theodore 
A.  Caufield.  A  motion  having  been  made  for  a  new  trial,  upon  the 
ground  that  the  charge  of  the  court  was  erroneous,  and  that  the 
verdict  was  against  law  and  contrary  to  the  evidence,  the  question 
was  reserved  and  submitted  to  this  court  for  its  advisory  opinion. 

The  material  facts  are,  that  on  the  18th  of  March,  1853,  Canfield, 
the  prosecutor,  procured  at  the  office  of  the  Morris  &  Essex  Railroad 
Company,  in  Newark,  a  passenger's  ticket  to  Morristown.  He  paid 
for  the  ticket  the  regular  fare  from  Newark  to  Morristown,  and  took 
bis  seat  in  the  cars.  At  Millville,  one  of  the  way  stations  upon 
the  road,  he  left  the  train.  Before  leaving  the  cars  he  received 
from  Van  Pelt,  the  conductor  of  that  train,  a  conductor's  check, 
upon  which  was  printed  the  words  "conductor's  check  to  INIorris- 
town."  About  an  hour  afterwards  Canlield  took  the  next  train  of 
cars  which  passed  the  Millville  Station  for  Morristown,  of  which 
train  Overton,  the  defendant,  was  conductor.  Upon  being  asked  by 
the  conductor  for  his  fare,  Canfield  tendered  in  payment  the  check 
received  by  him  from  Van  Pelt,  the  conductor  of  the  train  in  which 
Canfield  had  first  taken  his  seat;  this  the  conductor  refused  to 
accept,  and  the  passenger  refusing  to  pay  his  fare,  and  declining  to 
leave  the  cars  upon  request,  he  was,  without  unnecessary  force  or 
violence,  and  without  personal  injury,  removed  by  the  defendant 
from  the  cars,  at  one  of  the  way  stations  upon  tlie  road,  before 
reaching  Morristown.  The  company  furnished,  at  the  office  in 
Newark,  through  tickets  to  Morristown,  and  also  tickets  to  Mill- 
ville and  other  way  stations  upon  the  route.  Tlie  cost  of  a  ticket 
dirfctly  from  Newark  to  ^Morristown  was  less  than  tlie  cost  of  a 
tifkf-t  to  Millville  and  another  ticket  thence  to  Morristown.  Some 
ycar.s  previous  to  the  transaction,  the  company  had  given  public 
notice  that  conductor's  checks  were  not  transferable  from  one  train 
to  another. 

It  was  not  questioned  upon  the  trial  tliat  a  railroad  company  are 
not  iKJund  to  carry  a  passenger,  unless  upon  payment  or  tender  of 
his  fare;  that  they  may,  in  such  case,  either  refuse  to  permit  liim 
t"  'liter  the  cars,  or  liaving  entered  them,  they  may  require  liim  to 
!■  .  '•  them  before  the  termination  of  the  journey;  and  tliat  if  he 
r'fiiHfs  to  leave,  they  may  remove  liim  at  a  suitable  time  and  place, 
usin^  no  unnecessary  force.  The  ground  u^ion  which  the  convic- 
tion was  asked  was  that,  in  fact,  the  jiassenger  had  paid  his  fare; 


TICKETS.  667 

that  he  offered  to  the  conductor  competent  and  satisfactory  evidence 
of  that  fact,  and  that,  consequently,  the  act  of  the  conductor  in 
removing  him  from  the  cars  was  illegal. 

Had  the  passenger  in  fact  paid  his  fare,  or  was  the  check  given 
by  the  conductor  of  another  train,  evidence  of  that  fact?  He  had, 
it  is  admitted,  paid  his  fare  to  Morristown ,  by  the  train  in  which 
he  originally  took  his  passage.  Did  that  authorize  him  to  leave  the 
train  at  any  point  upon  the  road,  and  to  resume  his  place  for  his 
original  destination  in  a  different  train,  at  his  pleasure  ? 

The  question  is  obviously  a  question  of  contract  between  the  pas- 
senger  and  the  company.  By^j^^y"^"  fo^  ^  passage,  and  prj::Hiuring 
a  ticket  from  Newark  to  Morristown,  the  passenger  acquired  the_ 
right  to  be  carried  directly  from  one  point  to  the  other,  without 
interruption.  He  acquired  no  right  to  be  transported  from  one 
point  to  another  upon  the  route,  at  different  times  and  by  different 
lines  of  conveyance,  until  the  entire  journey  was  accomplished. 
The  company  engaged  to  carry  the  passenger  over  the  entire  route 
for  a  stipulated  price.  But  it  was  no  part  of  their  contract  that 
they  would  suffer  him  to  leave  the  train,  and  to  resume  his  seat  in 
another  train,  at  any  intervening  point  upon  the  road.  This  con- 
tract with  the  passenger  would  have  been  executed,  if  they  had 
proceeded  directly  to  Morristown,  without  stopping  at  any  inter- 
vening point;  nor  could  he  have  complained  of  a  violation  of  con- 
tract, if  no  other  train  had  passed  over  the  road,  in  which  he  might 
have  completed  his  journey.  If  the  passenger  chose  voluntarily  to 
leave  the  train  before  reaching  his  destination,  he  forfeited  all 
rights  under  his  contract.  The  company  did  not  engage,  and  were 
not  bound  to  carry  him  in  any  other  train,  or  at  any  other  time, 
over  the  residue  of  the  route. 

The  ^production  of  the  conductor's  ticket  in  nowise  altered  the 
case  or  affected  the  terms  of  the  original  contract.  It  was  evidence, 
indeed,  that  the  holder.Jbarl  p^irl  his  passage,  and  was  entitled  to  be 
carried  to  Morristown.  But  how  and  when?  Why,  clearly,  accord- 
ing to  the  terms  of  his_original  colitract.  It  was  evidence  that  he 
had  paid  his  fare  to  Morristown,  and  was  entitled  to  be  carried 
there  by  the  train  in  which  he  had  originally  taken  his  passage; 
for  that  purpose  alone  it  was  given  to  him;  that  train  he  had  left 
voluntarily,  without  the  knowledge  or  assent  of  the  conductor,  and 
without  giving  up  his  check.  The  check  was  therefore  valueless; 
the  right,  of  which  it  was  the  evidence,  the  passenger  had  volun- 
tarily relinquished. 

This  is  the  clear  legal  effect  of  the  contract  between  the  company 
and  the  passenger,  in  the  absence  of  any  evidence  to  the  contrary. 
If  the  passenger  insists  that  under  his  contract,  by  virtue  of  general 
usage  or  the  custom  upon  the  road,  he  is  entitled  to  be  carried  at 
his  pleasure  either  by  one  or  by  different  trains,  and  at  different 
times,  over  various  portions  of  his  journey,  the  burden  of  proof  was 


668  CARRIERS   OF   PASSENGERS. 

upon  the  State.  Xo  such  usage  was  established,  although  some 
evidence  was  offered  upon  the  trial,  for  the  purpose  of  proving  it. 

The  defendant  offered  evidence  to  sliow  that  some  years  previous 
to  the  transaction  the  company  had  adopted  a  rule,  and  given  public 
notice,  that  the  conductor's  check  was  not  transferable  from  one 
train  to  another.  This,  properly  considered,  is  a  simple  warning  to 
passengers,  that  they  would  be  carried  strictly  according  to  the 
terms  of  their  contract.  Even  if  a  previous  custom  had  been  proved 
(which  it  was  not)  for  passengers  to  be  carried  over  different  parts 
of  their  journey  by  different  trains,  it  was  a  mere  Avarning  that  in 
the  future  the  custom  would  not  prevail.  Upon  the  trial  this  action 
of  the  company  was  presented  to  the  court,  and  by  them  submitted 
to  the  jury,  as  if  it  were  a  by-law  or  regulation  of  the  company 
affecting  the  rights  of  passengers,  upon  the  reasonableness  and  con- 
sequent validity  of  wliich  the  jury  were  to  decide.  The  court  clearly 
intimated  its  opinion,  that  the  regulation  of  the  company  was  valid, 
but,  under  the  influence  of  the  ruling  of  another  tribunal,  submitted 
the  validity  of  the  regulation  as  a  matter  of  fact  to  the  jury. 

In  this  the  court  erred.  Here  was  no  evidence  of  any  by-law,  or 
of  any  regulation  made  by  the  company,  affecting  the  rights  of  pas- 
sengers, upon  the  reasonableness  or  validity  of  which  either  court 
or  jury  were  called  upon  to  decide.  The  right  of  the  passenger 
rested  upon  his  contract.  The  notice  given  by  the  company  was  in 
strict  conformity  with  his  rights  under  the  contract.  Upon  the 
evidence  in  the  cause,  if  no  proof  had  been  offered  of  the  notice 
given  by  the  company,  that  conductor's  checks  were  not  transfer- 
able, the  defendant  would  have  been  entitled  to  a  verdict.  Proof 
of  that  notice  certainly  placed  him  in  no  worse  position.  The  com- 
pany have  an  unquestionable  right,  under  their  charter,  independent 
of  any  by-law  or  regulation,  to  charge  different  rates  by  different 
trains,  or  a  higher  price  for  travelling  over  the  road  as  a  way-pas- 
senger, by  different  journeys,  than  for  a  through  passenger.  This 
was  in  reality  all  that  was  involved  in  the  evidence  of  the  action 
by  the  company,  as  proved  upon  the  trial.  The  case  does  not  fall 
within  the  operation  of  tlie  principle,  by  Avhich  it  was  held  to  be 
controlled. 


KEELEY  V.   T'.OSTON   &   MAINE   R.    CO. 

07  Me.  1(;3.     1878. 

Cask,  setting  out  in  substance  and  in  extended  legal  form  and 
phraseology  that  the  defendants  were  common  carriers  of  passen- 
gers; that  the  plaintiff  purchased  two  tickets,  one  of  the  following 


TICKETS.  669 

form:  "163.  Issued  by  Grand  Trunk  E.  K.,  and  Boston  &  Maine 
R.  R.,  Portland  to  Boston.  Valid  only  within  seven  days.  First 
class.  Form  39.  J.  Hickson,  General  Manager,  3376,"  and  another, 
similar  in  form,  but  which  he  is  unable  to  describe ;  that  he  entered 
the  defendants'  cars  at  Portland  for  Boston,  whither  he  was  carried; 
that  he  gave  up  the  "  similar  "  ticket  on  his  passage  to  Boston,  when 
the  defendants  promised  and  assured  the  plaintiff  that  the  ticket 
"described"  was  good  for  a  passage  for  him  over  the  defendants' 
railway  from  Boston  to  Portland;  that  on  the  26th  day  of  January, 
1876,  at  Boston,  he  entered  the  cars  to  be  conveyed  to  Portland,  and 
was  in  pursuance  of  said  payments  and  ticket  (described)  conveyed 
to  South  Lawrence,  where  he  was  ordered  out;  that  he  re-entered 
and  was  conveyed  to  Haverhill;  that  the  defendants  then  ordered 
him  to  leave  the  cars  and  ejected  him  therefrom  and  refused  to 
carry  him  to  Portland. 

The  plea  was,  not  guilty. 

Peters,  J.  This  case  presents  this  question:  Does  a  railroad 
ticket,  with  the  words,  "Portland  to  Boston"  imprinted  on  it.  pur- 
chased in  Portland  under  no  contract  other  than  what  is  inferable 
from  the  ticket  itself,  entitle  the  holder  to  a  passage,  on  the  road  of 
the  company  issuing  it,  from  Boston  to  Portjand?  Does  a  ticket 
one  way  give  the  right  to  pass  the  other  way  instead  ?  We  find^o 
case  decidingjhat  it  does,  nor  do  we  assent  to  the  proposition  that 
the  law~should  be  considered  to  be  so.  Such  is  not  the  contract 
which  the  ticket  is  evidence  of. 

It  has  been  held  that,  if  a  passenger  purchases  a  ticket  with  a 
notice  upon  it  that  it  is  "  good  for  one  day  only  "  in  the  absence  of 
a  statutory  regulation  to  the  contrary,  he  can  travel  upon  such 
ticket  only  on  that  day.  State  v.  Campbell,  32  N.  J.  L.  309; 
Shedd  w.  Troy  &  Boston  Railroad,  40  Vt.  88;  Johnson  v.  Concord 
Railroad,  46  N.  H.  213;  Boston  &  Lowell  Railroad  Co.  v.  Proctor, 
1  Allen,  267;  1  Redf.  on  Railways,  99,  and  notes.  It  has  been 
held  also  that  if  the  words  "  good  upon  one  train  only  "  are  printed 
upon  a  ticket,  the  holder  is  not  entitled  to  change  from  one  train  to 
another  after  the  passage  is  begun.  Cheney  v.  Boston  &  Maine  R. 
R.  Co.,  11  Met.  121.  Redf.  on  Railways,  szqjra.  If  such  notices 
confine  a  passenger  to  a  certain  day  and  a  particular  train,  why  is 
there  not  as  much  reason  to  say  in  this  case  that  the  notice  upon  the 
ticket  must  restrict  the  holder  of  it  to  go  in  the  particular  direction 
named  ? 

This  position  is  not  weakened  by  the  suggestion  that  the  company 
can  transport  the  passenger  as  cheaply  and  easily  one  way  as  the 
other.  If  it  were  so,  it  would  be  no  answer.  A  person  who  agrees 
to  sell  to  another,  merchandise  of  one  kind,  might  find  it  to  his 
profit  and  advantage  to  deliver  merchandise  of  another  kind,  but 
he  cannot  be  compelled  to  do  so. 

So  a  railroad  could  often,  no  doubt,  transport  a  passenger  as  con- 


670  CARRIERS   OF   PASSENGERS. 

venieutly  on  one  train  as  another  and  on  one  day  as  another ;  still, 
as  before  seen,  there  is  no  obligation  to  do  so.  But  it  does  not 
follow  that  a  railroad  corporation  can  carry  passengers  as  well  for 
itself  the  one  way  as  the  other.  Tliere  may  be  a  diiierence  arising 
from  various  considerations.  There  may  be  more  travellers  and 
more  freight  to  be  carried  one  way  than  the  other.  It  may  be  more 
expensive.  There  may  be  more  risk  in  the  one  passage  than  the 
other.  The  up  train  may  go  more  by  daylight  and  the  down  train 
more  by  night.  That  such  considerations  as  these  might  arise  in  a 
case,  whetlier  in  this  instance  they  exist  or  not,  helps  to  demon- 
strate that  a  ticket  one  way  is  a  diii'erent  thing  from  a  ticket  the 
other.  Practically,  the  doctrine  set  up  by  the  plaintiff,  if  allowed 
to  prevail,  would  affect  the  defendants  injuriously.  It  is  well 
known  that  through  tickets  are  cheaper  i^ro  rata  than  the  way  or 
local  fares.  This  fact  has  led  to  a  practice  on  the  part  of  way 
travellers  of  buying  through  tickets  and  using  them  over  a  part  of 
the  route  and  selling  them  for  the  balance  of  the  distance,  so  as  to 
make  a  saving  from  the  regular  prices  charged.  It  is  easily  seen 
that,  if  a  passenger  is  permitted  to  ride  in  either  direction  on  a 
ticket,  it  increases  tlie  chances  for  carrying  on  this  sort  of  specu- 
lation against  the  interests  of  the  road. 

It  does  not  avail  the  argument  for  the  plaintiff  at  all,  that  before 
this  he  had  passed  over  the  road  upon  other  tickets  in  a  direction 
the  reverse  of  that  advertised  upon  their  face;  nor  is  it  of  any 
importance  that  another  conductor  upon  another  train  at  another 
time  expressed  an  opinion  to  him  that  his  ticket  would  be  for  either 
direction  good.  The  contract  is  not  shorn  of  a  particular  stipula- 
tion merely  Vjecause  it  is  not  always  enforced.  Xor  could  such  con- 
ductor in  such  manner  bind  the  corporation,  and  it  could  not  have 
been  understood  by  the  plaintiff  that  he  undertook  to  do  so.  The 
conductor  merely  expressed  an  opinion  about  the  matter  which  he 
at  that  time  had  no  business  with.  The  plaintiff  had  ample  oppor- 
tunity to  purchase  another  ticket,  and  should  have  done  so.  Wake- 
field V.  South  Boston  Kailroad,  117  Mass.  544. 

Plaintiff  nonsuit. 


AL'EKl'.ACH    V.    X.  Y.    C.    &   II.    R.    R.    CO. 

so  N.  Y.  281.     1S82. 

Eakl,  J.  This  action  was  brought  l)y  tlie  jdaintiff  to  recover 
dainagfH  for  being  ejected  from  one  of  the  defeiuhmt's  cars  while  he 
was  riding  therein  as  a  passenger.  lie;  was  nonsuited  at  the  trial, 
and  the  judgment  entered  upon  tin;  nonsuit  was  affirmed  at  the 
General  Term.     The  material  facts  of  the  case  arc  as  follows :  The 


TICKETS.  671 

plaintiff,  being  in  St.  Louis  on  the  21st  day  of  September,  1877, 
purchased  of  the  Ohio  and  Mississippi  Railway  Company  a  ticket 
for  a  passage  from  St.  Louis  over  the  several  railroads  mentioned 
in  coupons  annexed  to  the  ticket  to  the  city  of  New  York.  It  was 
specified  on  the  ticket  that  it  was  "  good  for  one  continuous  passage 
to  point  named  on  coupon  attached;  "  that  in  selling  the  ticket  for 
passage  over  other  roads  the  company  making  the  sale  acted  only  as 
agent  for  such  other  roads,  and  assumed  no  responsibility  beyond 
its  own  line;  that  the  holder  of  the  ticket  agreed  with  the  respec- 
tive companies  over  whose  roads  he  was  to  be  carried  to  use  the 
same  on  or  before  the  26th  day  of  September  then  instant,  and  that, 
if  he  failed  to  comply  with  such  agreement,  either  of  the  companies 
might  refuse  to  accept  the  ticket,  or  any  coupons  thereof,  and  de- 
mand the  full  regular  fare  which  he  agreed  to  pay.  He  left  St. 
Louis  on  the  day  he  bought  the  ticket,  and  rode  to  Cincinnati,  and 
there  stopped  a  day.  He  then  rode  to  Cleveland  and  stayed  there  a 
few  hours,  and  then  rode  on  to  Buffalo,  reaching  there  on  the  24th, 
and  stopped  there  a  day.  Before  reaching  Buffalo  he  had  used  all 
the  coupons  except  the  one  entitling  him  to  a  passage  over  the  de- 
fendant's road  from  Buffalo  to  Xew  York.  The  material  part  of 
the  language  on  that  coupon  is  as  follows:  — 

"Issued  by  Ohio  and  Mississippi  Railway  on  account  of  New 
York  Central  and  Hudson  River  Railroad  one  first-class  passage, 
Buffalo  to  New  York." 

Being  desirous  of  stopping  at  Rochester,  the  plaintiff  purchased 
a  ticket  over  the  defendant's  road  from  Buffalo  to  Rochester,  and 
upon  that  ticket  rode  to  Rochester  on  the  2oth,  reaching  there  in 
the  afternoon.  He  remained  there  about  a  day,  and  in  the  after- 
noon of  the  26th  of  September  he  entered  one  of  the  cars  upon  the 
defendant's  road  to  complete  his  passage  to  the  city  of  New  York. 
He  presented  his  ticket,  with  the  one  coupon  attached,  to  the  con- 
ductor, and  it  was  accepted  by  him,  and  was  recognized  as  a  proper 
ticket  and  punched  several  times,  until  the  plaintiff  reached  Hudson 
about  three  or  four  o'clock,  a.  m.,  September  27th,  when  the  con- 
ductor in  charge  of  the  train  declined  to  recognize  the  ticket  on  the 
ground  that  the  time  had  run  ovit,  and  demanded  three  dollars  fare 
to  the  city  of  New  York,  which  the  plaintiff  declined  to  pay.  The 
conductor  with  some  force  then  ejected  him  from  the  car. 

The  trial  judge  nonsuited  the  plaintiff  on  the  ground  that  the 
ticket  entitled  him  to  a  continuous  passage  from  Buffalo  to  New 
York,  and  not  from  any  intermediate  point  to  New  York.  The 
General  Term  affirmed  the  nonsuit  upon  the  ground  that,  although 
the  plaintiff  commenced  his  passage  upon  the  26th  of  September,  he 
could  not  continue  it  after  that  date  on  that  ticket. 

We  are  of  opinion  that  the  plaintiff  was  improperly  nonsuited. 
The  contract  at  St.  Louis,  evidenced  by  the  ticket  and  coupons 
there  sold,  was  not  a  contract  by  any  one  company  or  by  all  the 


672  CARRIERS   OF   PASSENGERS. 

companies  named  in  the  coupons  jointly  for  a  continuous  passage 
from  St.  Louis  to  New  York,  A  separate  contract  was  made  for  a 
continuous  passage  over  each  of  the  roads  mentioned  in  the  several 
coupons.  Each  company  through  the  agent  selling  the  ticket  made 
a  contract  for  a  passage  over  its  road,  and  each  company  assumed 
responsibility  for  the  passenger  only  over  its  road.  Ko  company 
was  liable  for  any  accident  or  default  upon  any  road  but  its  own. 
This  was  so  by  the  very  terras  of  the  agreement  printed  upon  the 
ticket.  Hence  the  defendant  is  not  in  a  position  to  claim  that  the 
plaintiff  was  bound  to  a  continuous  passage  from  St.  Louis  to  Xew 
York,  and  it  cannot  complain  of  the  stoppage  at  Cincinnati  and 
Cleveland.  Hutchinson  on  Carriers,  sec.  579;  Brooke  v.  The  Grand 
Trunk  Railway  Co.,  15  Mich.  332. 

But  the  plaintiff  was  bound  to  a  continuous  passage  over  the 
defendant's  road;  that  is,  the  plaintiff  could  not  enter  one  train  of 
the  defendant's  cars  and  then  leave  it,  and  subsequently  take 
another  train,  and  complete  his  journey.  He  was  not,  however, 
bound  to  commence  his  passage  at  Buffalo.  He  could  commence  it 
at  Eochester  or  Albany,  or  any  other  point  between  Buffalo  and 
Xew  York,  and  then  make  it  continuous.  The  language  of  the  con- 
tract and  the  purpose  which  may  be  supposed  to  have  influenced  the 
making  of  it  do  not  require  a  construction  which  would  make  it 
im}»erative  upon  a  passenger  to  enter  a  train  at  Buffalo.  No  pos- 
sible harm  or  inconvenience  could  come  to  the  defendant  if  the 
passenger  should  forego  his  right  to  ride  from  Buffalo  and  ride  only 
from  Rochester  or  Albany.  The  purpose  was  only  to  secure  a  con- 
tinuous passage  after  the  passenger  had  once  entered  upon  a  train. 
On  the  2Gth  of  September  the  plaintiff  having  the  right  to  enter  a 
train  at  Buffalo,  it  cannot  be  perceived  why  he  could  not,  with  the 
same  ticket,  rightfully  enter  a  train  upon  the  same  line  at  any 
point  nearer  to  the  place  of  destination. 

"When  the  plaintiff  entered  the  train  at  Rochester  on  the  after- 
noon of  the  2Gth  of  September,  and  presented  his  ticket,  and  it  was 
accepted  and  punched,  it  was  then  used  within  the  meaning  of  the 
contract.  It  could  then  have  been  taken  up.  So  far  as  the  plain- 
tiff was  concerned,  it  had  then  performed  its  office.  It  was  there- 
fore left  with  him  not  for  his  convenience,  but  under  regulations 
of  the  defendant  for  its  convenience  that  it  might  know  that  his 
passage  had  been  paid  for.  The  contract  did  not  specify  that  the 
passage  should  be  com])leted  on  or  before  the  2Gth,  but  that  the 
ticket  .should  be  used  on  or  before  that  day,  and  tluit  it  was  so  used 
it  seems  to  us  is  too  clear  for  dispute. 

The  language  printed  upon  the  ticket  must  be  regarded  as  the 
language  of  the  defendant,  and  if  it  is  of  doubtful  imi)ort  tlie  doubt 
should  not  be  solved  to  the  detriment  of  the  passenger.  If  it  had 
Ix-f-n  intended  by  tlie  defendant  tliat  tlie  jtassage  should  be  con- 
tinuous from  St.   Louis  to  New  York,  or  tliat  it  should  actually 


TICKETS.  673 

commence  at  Buffalo  and  be  continuous  to  the  city  of  New  York,  or 
that  the  passage  shoukl  be  completed  on  or  before  the  26th  of  Sep- 
tember, such  intention  should  have  been  plainly  expressed  and  not 
left  in  such  doubt  as  might  and  naturally  would  mislead  the 
passenger. 

We  have  carefully  examined  the  authorities  to  which  the  learned 
counsel  for  the  defendant  has  called  our  attention,  and  it  is  suffi- 
cient to  say  that  none  of  them  are  in  conflict  with  the  views  above 
expressed. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  costs 
to  abide  the  event. 


BOYLAN   V.   HOT   SPETNGS  E.    CO. 
132  U.  S.  146.     1889. 

This  was  an  action  of  assumpsit  against  a  railroad  corporation  by 
a  person  who,  after  taking  passage  on  one  of  its  trains,  was  forcibly 
expelled  by  the  conductor. 

At  the  trial  in  the  Circuit  Court,  the  plaintiff  testified  that  on 
March  18,  1882,  he  purchased  at  the  office  of  the  Wabash,  St.  Louis, 
and  Pacific  Eailway  Company  in  Chicago  a  ticket  for  a  passage  to 
Hot  Springs  and  back  (which  is  copied  in  the  margin,^  and  which, 
as  was  alleged  in  the  declaration  and  appeared  upon  the  face  of  the 
ticket,  was  then  signed  by  him  as  well  as  by  the  ticket  agent,  and 
witnessed  by  a  third  person),  and  upon  this  ticket  travelled  on  the 
defendant's  railroad  to  Hot  Springs. 

He  was  asked  by  his  counsel  when  he  first  actually  knew  that  the 
ticket  required  him  to  have  it  stamped  at  Hot  Springs.  The  ques- 
tion was  objected  to  by  the  defendant,  and  ruled  out  by  the  court. 

He  further  testified  that  on  April  19,  1882,  when  leaving  Hot 
Springs  on  his  return  to  Chicago,  he  went  to  the  baggage-office  and 
requested  the  baggage-master  to  check  his  baggage,  and,  on  his 
asking  to  see  the  ticket,  showed  it  to  him,  and  he  thereupon  punched 
the  ticket,  checked  the  baggage,  and  gave  him  the  checks  for  it;  and 
also  that  the  gateman  asked  to  see  the  ticket,  and  he  showed  it  to 
him,  and  then  passed  through  the  gate  and  took  his  seat  in  the  cars. 
This  testimony  was  objected  to  by  the  defendant,  on  the  ground 
that  no  statement  or  action  of  the  baggage-master,  or  of  the  gate- 
man,  would  constitute  a  waiver  of  any  of  the  written  conditions  of 
the  contract;  and  it  was  admitted  by  the  court,  subject  to  the 
objection. 

The  plaintiff  then  testified  that  soon  after  leaving  Hot  Springs 
the  conductor,   in  taking  the  tickets  of  passengers,  came  to  him, 

1  [The  terms  of  the  ticket  sufficiently  appear,  without  setting  out  the  copj\] 

43 


674  CARRIERS   OF   PASSENGERS. 

and,  upon  being  shown  his  ticket,  said  it  was  not  good,  because  he 
had  failed  to  have  it  stamped  at  Hot  Springs;  the  plaintiff  replied 
that  the  baggage-master,  when  checking  his  baggage,  had  said 
nothing  to  him  about  it,  and  he  did  not  know  it  was  necessar}-;  the 
conductor  answered  that  he  must  either  go  back  to  Hot  Sjjrings  and 
have  the  ticket  stamped,  or  else  pay  full  fare,  but  did  not  demand 
any  specific  sum  of  fare,  or  tell  him  what  the  fare  was,  and  upon 
liis  refusing  to  pay  another  fare  or  to  leave  the  train,  forcibly  put 
him  off  at  the  next  station,  notwithstanding  he  resisted  as  much  as 
lie  could,  and  in  so  doing  injured  him  in  body  and  health. 

On  motion  of  the  defendant,  upon  the  grounds,  among  others, 
-that  this  was  an  action  of  assu77ipsit  for  breach  of  contract,  and 
that  the  plaintiff  failed  to  produce  to  the  conductor  a  ticket  or 
voucher  which  entitled  him  to  be  carried  on  the  train,  and  that 
until  the  plaintiff'  identified  himself  at  the  ofiice  at  Hot  Springs 
and  had  the  ticket  stamped  and  signed  by  the  agent  there,  he  had 
no  subsisting  contract  between  himself  and  the  defendant  for  a 
return  passage  to  Chicago,  the  court  declined  to  permit  the  plain- 
tiff to  testify  to  the  consequent  injury  to  his  business  and  to  his 
ability  to  earn  money,  excluded  all  evidence  offered  as  to  the  force 
used  in  removing  him  from  the  train,  and  as  to  his  expulsion  from 
the  train  (although  corresponding  to  allegations  inserted  in  the 
declaration) ,  and  directed  a  verdict  for  the  defendant. 

The  plaintiff  excepted  to  the  rulings  of  the  court,  and,  after  ver- 
dict and  judgment  for  the  defendant,  sued  out  this  writ  of  error. 

Mr.  Justice  Gkay.  This  is  an  action  of  assumpsit,  and  cannot 
be  maintained  without  proof  of  a  breach  of  contract  by  the  defend- 
ant to  carry  the  plaintiff.  The  only  contract  between  the  parties 
was  an  express  one,  signed  by  the  plaintiff  himself  as  well  as  by  the 
defendant's  agent  at  Chicago,  and  contained  in  a  ticket  for  a  passage 
to  Hot  Springs  and  back.  The  plaintiff",  having  assented  to  that 
contract  by  accepting  and  signing  it,  was  Ijound  by  the  conditions 
expressed  in  it,  whether  he  did  or  did  not  read  them  or  know  what 
they  were.  The  question,  when  he  first  knew  that  the  ticket  re- 
quired him  to  have  it  stamped  at  Hot  Springs,  was  therefore  rightly 
excluded  as  immaterial. 

By  the  express  condition  of  the  plaintiff's  contract,  he  had  no 
right  to  a  return  passage  under  his  ticket,  unless  it  bore  the  sig- 
nature and  stamp  of  the  defendant's  agent  at  Hot  Springs;  and  no 
agent  or  employee  of  the  defendant  was  autliorized  to  alter,  modify, 
or  waive  any  condition  of  the  contract. 

Neither  the  action  of  the  baggagc-mastcr  in  punching  tlie  ticket 
and  checking  the  plaintiff's  baggage,  nor  that  of  the  gateman  in 
admitting  liim  to  the  train,  therefore,  could  Ijind  the  defendant  to 
carry  liim,  or  estop  it  to  deny  his  riglit  to  be  carried. 

The  ]jlaintiff  did  not  liave  liis  ticket  stamped  at  Hot  Springs,  or 
make  any  attempt  to  do  so,  but  insisted  on  the  right  to  make  the 


TICKETS.  675 

return  trip  under  the  unstamped  ticket,  and  without  paying  further 
fare.  As  he  absolutely  declined  to  pay  any  such  fare,  the  fact  that 
the  conductor  did  not  inform  him  of  its  amount  is  immaterial. 

The  unstamped  ticket  giving  him  no  right  to  a  return  passage, 
and  he  not  having  paid,  but  absolutely  refusing  to  pay,  the  usual 
fare,  there  was  no  contract  in  force  between  him  and  the  defendant 
to  carry  him  back  from  Hot  Springs. 

There  being  no  such  contract  in  force,  there  could  be  no  breach 
of  it;  and  no  breach  of  contract  being  shown,  this  action  of  assump- 
sit,  sounding  in  contract  only,  and  not  in  tort,  cannot  be  maintained 
to  recover  any  damages,  direct  or  consequential,  for  the  plaintiff's 
expulsion  from  the  defendant's  train.  The  plaintiff,  therefore,  has 
not  been  prejudiced  by  the  exclusion  of  the  evidence  concerning  the 
circumstances  attending  his  expulsion  and  the  consequent  injuries 
to  him  or  his  business. 

The  case  is  substantially  governed  by  the  judgment  of  this  court 
in  Mosher  v.  St.  Louis,  Iron  Mountain  &  Southern  Eailway,  127 
U.  S.  390,  and  our  conclusion  in  the  case  at  bar  is  in  accord  with 
the  general  current  of  decision  in  the  courts  of  the  several  States. 
See,  besides  the  cases  cited  at  the  end  of  that  judgment,  the  follow- 
ing: Churchill  v.  Chicago  &  Alton  Railroad,  67  Illinois,  390;  Petrie 
V.  Pennsylvania  Railroad,  13  Vroom,  449;  Pennington  v.  Philadel- 
phia, Wilmington  &  Baltimore  Railroad,  62  Maryland,  95;  Raw- 
itzky  V.  Louisville  &  Nashville  Railroad,  40  La.  Ann.  47. 

Nor  was  anything  inconsistent  with  this  conclusion  decided  in 
either  of  the  English  cases  relied  on  by  the  learned  counsel  for  the 
plaintiff.  Each  of  those  cases  turned  upon  the  validity  and  effect  of  a 
by-law  made  by  the  railway  company,  not  of  a  contract  signed  by  the 
plaintiff;  and  otherwise  essentially  differed  from  the  case  at  bar. 

In  Jennings  v.  Great  Northern  Railway,  L.  R.  1  Q.  B.  7,  the  by- 
law required  every  passenger  to  obtain  a  ticket  before  entering  the 
train,  and  to  show  and  deliver  up  his  ticket  whenever  demanded. 
The  plaintiff  took  a  ticket  for  himself,  as  well  as  tickets  for  three 
horses  and  three  boys  attending  them,  by  a  particular  train,  which 
was  afterwards  divided  into  two,  in  the  first  of  which  the  plaintiff 
travelled,  taking  all  the  tickets  with  him;  and  when  the  second 
train  was  about  to  start,  the  boys  were  asked  to  produce  their 
tickets,  and,  being  unable  to  do  so,  Were  prevented  by  the  com- 
pany's servants  from  proceeding  with  the  horses.  An  action  by  the 
plaintiff'  against  the  company  for  not  carrying  his  servants  was  sus- 
tained, because  the  company  contracted  with  him  only,  and  de- 
livered all  the  tickets  to  him;  and  Lord  Chief  Justice  Cockburn, 
with  whom  the  other  judges  concurred,  said:  "It  is  unnecessary  to 
determine  whether,  if  the  company  had  given  the  tickets  to  the 
boys,  and  the  boys  had  not  produced  their  tickets,  it  would  have 
been  competent  for  the  company  to  have  turned  them  out  of  the 
carriage." 


676  CAERIEES   OF   PASSENGERS. 

lu  Butler  v.  Manchester,  Shetfield  &  Lincolnshire  Railway,  21 
Q.  B.  D.  207,  the  ticket  referred  to  conditions  published  by  the  com- 
pany, containing  a  similar  bj'-law,  which  further  provided  that  any 
passenger  travelling  without  a  ticket,  or  not  showing  or  delivering 
it  up  when  requested,  should  pay  the  fare  from  the  station  whence 
the  train  originally  started.  The  plaintiff,  having  lost  his  ticket, 
was  unable  to  produce  it  Avhen  demanded,  and,  refusing  to  pay  such 
fare,  was  forcibly  removed  from  the  train  by  the  defendant's  ser- 
vants. The  Court  of  Appeal,  reversing  a  judgment  of  the  Queen's 
Bench  Division,  held  the  company  liable,  because  the  plaintilf  was 
lawfully  on  the  train  under  a  contract  of  the  company  to  carry  him, 
and  no  right  to  expel  him  forcibly  could  be  inferred  from  the  provi- 
sions of  the  by-law  in  question,  requiring  \\u\\  to  show  his  ticket  or 
pay  the  fare;  and  each  of  the  judges  cautiously  abstained  from 
expressing  a  decided  opinion  upon  the  question  whether  a  by-law 
could  have  been  so  framed  as  to  justify  the  course  taken  by  the 
company.  Judgment  affirmed. 


NASHVILLE,    etc.    R.    CO.    v.    SPRAYBERRY. 

8  Baxt.  (Tenn.)  341.     1874. 

McFarlaxd,  J.  Sprayberry  purchased  from  an  agent  of  the 
Nashville  »S:  Chattanooga  R.  R.  Co.,  at  Chattanooga,  tickets  for 
himself,  wife,  and  two  children  from  that  place  to  Shreveport,  La. 
The  tickets  are  what  are  known  as  coupon  tickets,  and  indicated  the 
route  to  be  by  the  Nashville  &  Chattanooga  road  to  Nashville,  and 
by  other  connecting  roads  to  Memphis,  and  from  that  point  to 
Shreveport  by  steamboat.  After  ])assing  over  the  railroads  to 
^lempliis  the  party  took  the  steamboat  called  the  "Nick  Wall," 
to  which  they  were  directed,  and  while  on  the  route  on  the  Missis- 
sippi River  an  accident  occurred,  in  which  the  wife  of  Sprayberry 
and  his  two  children  were  drowned.  This  action  was  brought  by 
Sprayberry  against  the  Nasliville  &  Cliattanooga  R.  R.  Co.  Tlie 
drowning  is  averred  to  have  been  the  result  of  the  misconduct  and 
want  of  skill  of  the  officers  and  servants  of  the  boat.  A  demurrer 
was  filed  upon  the  ground  that  the  plaintiff  could  not  maintain  the 
action  in  his  own  name  for  wrongs  or  injuries  causing  the  death  of 
the  wife  and  children.  This,  we  think,  was  properly  overruled. 
An  action  of  this  charactfr  is  unknown  to  common  law,  and  is  only 
given  by  statute,  and  whore  sucli  an  action  is  given  by  statute  and 
a  remedy  i)rescribed,  that  remedy  must  be  pursued.  As  the  injury 
occurred  in  the  State  of  Mississippi,  the  right  of  action  and  tlio 
remedy  prescribed  Ity  the  statute  of  that  State  is  the  one  to  wliieli 
the  plaintiff  was  entitled.     The  statute  of  this  State  on  tlio  subject 


TICKETS.  677 

has  no  application.  The  action,  though  predicated  upon  the  Mis- 
sissippi statute,  may  be  brought  in  this  State.  In  such  case  the 
declaration  must  aver  the  statute  under  which  it  is  brought.  This 
was  suiftciently  done.  That  statute  gives  the  remedy  to  the  husband 
and  father,  and  we  enforce  that  remedy  in  our  courts. 

The  next  question,  and  one  of  importance,  is  as  to  the  liability  of 
the  Nashville  and  Chattanooga  Railroad  Company  for  injuries  to  the 
passengers  caused  by  the  wrongful  acts,  negligence,  or  want  of  skill 
in  the  officers  and  servants  of  the  steamboat  after  the  passengers 
had  passed  beyond  their  line.  The  declaration  avers  that  the  de- 
fendant was  in  partnership  with  the  company  or  line  of  carriers 
owning  the  boat.  This  was  put  in  issue.  The  judge,  in  his  charge, 
instructed  the  jury  in  substance  that  it  was  not  necessary  for  the 
plaintiff  to  prove  this  to  entitle  him  to  a  recovery,  but  if  the  plain- 
tiff purchased  the  tickets  from  an  authorized  agent  of  the  defendant, 
the  defendant  thereby  became  bound  for  the  transportation  of  the 
passengers  over  the  entire  line  for  which  the  tickets  were  sold, 
although  beyond  the  terminus  of  its  road;  that  the  company  selling 
the  tickets  incurs  a  responsibility  as  though  the  entire  route  was 
its  own,  unless  it  stipulated  at  the  time  for  a  less  responsibility. 
This  we  understand  to  be  the  substance  of  the  instructions  to  the 
jury  on  this  question.  This  doctrine  rests  upon  the  theory  that  the 
contract  is  alone  with  the  company  from  whom  the  tickets  were 
purchased  for  the  entire  route,  and  that  the  connecting  lines  are 
but  agents  of  the  first  in  carrying  out  this  contract,  and  as  a  conse- 
quence the  acts  or  negligence  of  the  servants  causing  the  injury  are 
the  acts  of  the  joint  company.  This  is  laid  down  as  the  true  doc- 
trine in  Shearman  &  Redfield  on  Negligence,  sec.  272,  though  it  is 
conceded  that  the  American  cases  do  not  always  support  it.  The 
cases  referred  to  in  support  of  the  position  we  have  not  had  an 
opportunity  to  examine. 

In  the  case  of  Carter  &  Hough  v.  Peck,  4  Sneed,  203,  the  language 
of  the  judge  delivering  the  opinion  of  the  court  seems  to  favor  this 
view.  In  that  case,  however,  it  appeared  that  the  plaintiff  pur- 
chased from  the  defendants,  the  proprietors  of  a  stage  line,  through 
tickets  from  Nashville  to  Memphis;  the  defendants  did  not  own  the 
entire  line,  but  had  an  arrangement  with  another  company  owning 
a  stage  line  to  receive  the  passengers  at  Waynesboro  on  the  route 
and  carry  them  to  LaGrange  for  their  share  of  the  fare,  from  which 
point  they  were  to  be  taken  to  Memphis  by  railway,  but  this 
arrangement  was  not  known  to  the  plaintiff.  The  connecting  line 
at  Waynesboro  failed  and  refused  to  carry  the  plaintiff,  and  he 
was  compelled  to  pay  his  fare  upon  another  route.  It  was  held 
that  the  plaintiff  was  entitled  to  hold  the  first  company  liable  for 
this  failure  upon  the  ground  that  his  contract  was  alone  with  them. 

The  case  of  Fustenheim  v.  The  Memphis  &  Ohio  R.  R.  Co.,  de- 
cided at  Jackson  by  this  court  in  April,  1872,  was  this,  the  plain- 


678  CARFJEES    OF   rASSENGERS. 

tiff  purchased  a  through  ticket  from  New  York  to  Memphis  from 
the  Feunsylvauia  Central  Railroad  Company,  and  received  a  check 
for  his  baggage,  to  be  delivered  at  Memphis.  It  was  held  that  upon 
this  the  plaintiff  could  not  recover  from  the  last  company  running 
into  Memphis  for  an  injury  to  his  baggage,  which  occurred  while  on 
the  Pennsylvania  Central  road;  for  this  injury  he  must  look  to 
that  company.  We  also  referred  to  several  cases,  and  one  of  them 
our  own  holding,  that  a  carrier  receiving  freight  to  be  carried  be- 
yond the  terminus  of  its  own  road  is  responsible  for  its  delivery  at 
that  point  unless  a  different  liability  is  stipulated  for  and  these  are 
as  stated  authorities  holding  that  the  same  rule  applies  to  passengers. 

On  the  other  hand,  there  are  authorities  holding  that  a  different 
rule  applies  to  passengers  from  the  rule  applicable  to  freight  and 
baggage.  That  where  tickets  of  this  character  are  sold  they  are  to 
be  regarded  as  distinct  tickets  for  each  road  sold  by  the  first  com- 
pany as  agent  of  the  others,  so  far  as  passengers  are  concerned. 
This  is  the  doctrine  maintained  by  Judge  Eedfield  in  his  work  on 
carriers.  He  refers,  among  others,  to  the  case  of  Ellsworth  v. 
Tartt,  26  Ala.  733,  in  which  he  says  the  question  was  a  good  deal 
examined,  and  the  rule  laid  down  to  be,  "  If  the  proprietors  of 
different  portions  of  a  public  line  of  travel,  by  an  agreement  among 
themselves,  appoint  a  common  agent  at  each  end  of  the  route  to 
receive  the  fare  and  give  through  tickets,  this  does  not  of  itself 
constitute  them  parties  as  to  passengers,  so  as  to  render  each  one 
liable  for  losses  occurring  upon  any  portion  of  the  line."  He  refers 
also  to  other  authorities.  See  Redfield  on  Carriers,  sec.  444.  And 
the  same  author  maintains  the  same  doctrine  in  his  work  on  the 
Law  of  Railways,  vol.  2,  sec.  201. 

In  this  conflict  of  authority  we  are  left  to  adopt  the  rule  which  to 
us  seems  supported  by  the  soundest  reason. 

The  extent  and  termijii  of  great  railway  lines,  owned  and  operated 
by  companies  incorporated  by  public  laws,  may  be  supposed  to  be 
known,  at  least  in  general,  to  persons  of  ordinary  intelligence  when 
they  purchase  tickets  to  travel  over  them,  especially  when  this  is 
shown  by  the  tickets  themselves.  The  system  of  selling  through 
tickets  is  one  of  great  importance  and  convenience  to  travellers,  as 
it  avoids  trouble,  besides  securing  in  some  instances  lower  rates. 
The  tlieory  that  the  company  selling  the  ticket  shall  be  held  from 
this  alone  to  have  actually  contracted  to  carry  the  passengers  over 
roads  besides  its  own,  and  that  the  owners  of  the  other  roads  are 
but  the  agents  of  the  first  to  carry  out  the  contract,  seems  to  us  to 
be  an  arbitrary  assumption,  — a  sort  of  legal  fiction,  — and  contrary 
in  some  cases,  at  least,  to  the  truth  of  the  case.  Assuming  tliat  in 
fact,  the  different  lines  of  road  are  separate  and  distinct,  and  owned 
and  controlled  by  different  companies,  with  different  agents  and 
officers,  and  that  there  is  no  contract  or  privity  between  them  in 
regard  to  carrying  passengers,  except  the  arrangement  to  sell  tlirough 


TICKETS.  679 

tickets,  and  that  these  facts  appear  in  proof,  shall  the  fact  that  the 
first  company,  with  the  authority  of  the  others,  issues  and  sells  the 
tickets,  be  held  of  itself  to  establish  exactly  contrary  to  the  truth, 
that  the  other  companies  are  but  the  agents  and  servants  of  the 
first?  There  is  nothing  in  this  record  to  indicate  that  the  officers 
and  agents  of  the  steamboat  whose  wrongful  acts  or  negligence  are 
said  to  have  caused  the  death  of  the  plaintiff's  wife  and  children, 
were  the  servants  of  this  defendant,  or  in  any  manner  under  its  con- 
trol, except  the  simple  fact  that  the  defendant  sold  the  tickets.  To 
allow  this  of  itself  to  establish  this  arbitrary  conclusion  against  the 
truth,  would  be  to  attach  unjust  responsibility  upon  the  company 
selling  the  tickets.  We  are  ofopinion  that  in  such  cases  the  com- 
pany selling  the  ticket  shall  be  regarded  as  the  agent  of  the  other 
lines  when  the  tickets  themselves  impart  this  and  nothing  else 
ajopearSj  and  the  purchaser  may  well  understand  with  whom  the 
contract  is  made,  and  who  is  bound  for  its  performance. 

Of  course  the  company  selling  the  tickets  may,  by  contract,  either 
expressed  or  to  be  fairly  implied  from  its  acts,  bind  itself  to  be 
responsible  for  the  entire  route;  but  this  should  not  be  held  con- 
clusively established  from  the  sale  of  the  tickets  alone,  nor  should 
it  be  held  to  throw  upon  the  defendant  the  onus  of  proving  that  it 
expressly  limited  its  liability.  If  a  partnership  in  fact  appear,  the 
case  would  be  different. 

For  this  error  the  judgment  must  be  reversed,  and  a  new  trial 
awarded. 


CENTRAL   R.    CO.    v.   COMBS. 
70  Ga.  533.     1883. 

Action  for  breach  of  contract  to  carry  a  passenger.  The  opinion 
states  the  point.     The  plaintiff  had  judgment  below. 

Blandford,  J.  The  defendants  in  error  brought  their  separate 
actions  in  the  Superior  Court  of  Bibb  County  against  the  plaintiff  in 
error,  in  which  each  alleged  that  he  made  a  contract  with  the  de- 
fendant (the  plaintiff  in  error),  that  for  and  in  consideration  of  the 
sum  of  $35.55,  it  would  transport  the  plaintiff  from  the  city  of 
Macon,  Georgia,  to  the  city  of  Galveston,  Texas ;  that  he  paid  said 
amount  to  defendant,  and  that  defendant  issued  and  delivered  to 
plaintiff  a  ticket,  with  certain  coupons  attached;  that  plaintiff 
travelled  and  was  transported  on  said  ticket  as  far  as  the  city  of 
New  Orleans;  that  part  of  the  ticket  so  purchased  was  over  the 
Morgan  line  from  New  Orleans  to  Galveston ;  that  he  left  the  city 
of  Macon  on  the  20th  of  August,  1879,  and  followed  the  directions 
given  him  by  defendant,    reaching  New  Orleans   on  the   21st  of 


680  CARRIERS   OF   PASSENGERS. 

August,  1879,  and  there  the  defendant  failed  and  refused  to  cany 
him  further  on  his  journey,  and  the  ]\Iorgan  line  failed  and  refused 
to  carry  plaintiff  from  Xew  Orleans  to  Galveston.  And  it  was 
further  averred  that  there  was  no  steamer  running  on  the  Morgan 
line  from  Xew  Orleans,  and  had  not  been  for  a  long  time  before  the 
issuing  of  said  ticket  and  the  making  of  the  contract,  and  that  fact 
defendant  knew  before  it  sold  the  ticket.  These  are  all  the  alle- 
gations in  the  declaration  material  to  be  considered  by  this  court. 

The  defendant  in  the  court  below  and  plaintiff  in  error  in  this 
court  filed  a  plea  of  the  general  issue. 

There  are  several  questions  made  by  this  record.  First,  is  a 
railroad  company  which  sells  and  issues  tickets  to  passengers  and 
persons  over  its  own  lines  of  i-oad  and  the  lines  of  road  of  other 
companies,  known  as  through  tickets,  liable  for  the  sure  and  safe 
transportation  of  such  passengers  or  persons  to  the  point  of  destina- 
tion, notwithstanding  there  may  be  indorsed  or  printed  on  the 
tickets  so  sold  and  issued,  "that  the  company  issuing  and  selling 
such  tickets  shall  not  be  liable  except  as  to  its  own  line  of  road  ?  " 
It  has  been  held  by  this  court,  that  when  a  passenger  with  a  through 
ticket  over  a  connecting  line  of  railroads  checks  his  baggage  at  the 
starting-point  through  to  his  destination,  and  upon  arriving  it  is 
damaged  and  has  been  broken  open  and  robbed,  he  may  sue  the  road 
which  issued  the  check,  or  he  may  sue  the  road  delivering  the  bag- 
gage in  bad  order.  Wolff  v.  Central  Railroad  Company,  68  Ga.  653; 
Hawley  v.  Screven,  62  Ga.  347.  In  2  Kedf.  Railw.,  §  201,  it  is 
stated  "that  taking  pay  and  giving  tickets  or  checks  through  for  the 
carriage  of  baggage  of  passengers,  binds  the  first  company,  ordi- 
narily, for  the  entire  route."  Yet  this  author,  who  cannot  be  con- 
sidered as  having  any  bias  or  prejudice  against  these  corpoi'ations, 
does  not  assign  any  reason  for  the  diHinn  above.  He  contents  him- 
self with  citing  the  case  of  McCormick  v.  Hudson  River  R.  Co., 
4  E.  D.  Smith,   181. 

It  may  be  very  safely  assumed  from  these  decisions  that  the  law 
in  this  State  is,  that  when  a  railroad  company  issues  and  sells  a 
ticket  over  its  own  lines  of  road,  and  over  the  lines  of  other  roads 
to  a  point  designated,  sucli  company  is  liable  to  the  passenger  thus 
purfthasing  such  ticket,  who  checks  his  baggage  through  on  the  line 
inflif;att'd  in  tlie  ticket,  for  the  safe  and  secure  carriage  and  trans- 
portation of  sucli  baggage.  And  if  the  railroad  company  would  be 
liable  for  the  safe  and  secure  transportation  of  the  baggage  of  a 
passenger  which  is  but  a  convenience  and  incident  of  the  passenger, 
it  cannot  be  very  readily  ])erceived  why  sucli  company  should  not 
be  liable  for  the  safe  and  secure  carriage  and  tnuisportation  of  the 
passenger  himsfdf.  Why  is  the  company  tlius  contracting  liable  for 
the  transportation  of  the  passenger's  baggage  ?  Is  it  not  because 
such  is  the  undertaking  of  such  company  ? 


TICKETS.  681 

In  the  case  of  Illinois  C.  E.  v.  Copeland,  24  111.  338,  the  Supreme 
Court  of  that  State  say  this :  "  We  hold  the  ticket  and  the  check 
given  by  this  company,  and  produced  in  evidence,  imply  a  special 
undertaking  to  carry  the  passenger  to  St.  Louis  via  the  Terre  Haute 
&  Alton  Railroad  and  his  baggage  also.  The  ticket  is  what  is 
known  as  a  through  ticket,  and  the  check  denotes  that  the  baggage 
is  checked  from  Chicago  to  St.  Louis,  and  both  inform  the  pas- 
senger that  the  Illinois  Central  has  running  connections  with  the 
Terre  Haute  &  Alton  road,  and  that  they  can  and  will  deliver  the 
passenger  and  baggage,  by  means  of  this  connection,  at  St.  Louis. 
The  ticket  and  check  are  both  issued  by  the  Illinois  Central ;  they 
are  the  evidence  of  the  contract  made  with  them,  and  in  effect  speak 
this  language :  '  If  you  will  buy  this  ticket  we  will  carry  you  safely 
to  St.  Louis  and  your  baggage  also;  the  terminus  of  our  road,  by 
means  of  our  connection  with  the  Terre  Haute  &  Alton  road,  is  at 
St.  Louis,  and  we  guarantee  to  you  your  safe  arrival  there  with  your 
baggage,  .  .  .  whether  we  run  our  own  cars  through  or  take  those 
of  the  other  road  at  the  point  of  intersection.  You  pay  through, 
and  you  and  your  baggage  shall  be  carried  through.'  This  is  the 
contract  evidenced,  we  think,  by  the  ticket  and  the  check."  What 
a  close  analogy  between  the  case  under  consideration  and  the 
Illinois  case  above  cited!  And  the  reason  for  the  rule  is  well 
stated.  You  |pay  your  money  to  go  through,  and  [the  company 
receiving  it  guarantees  to  you  that  you  shall  go  through  safely;  it 
is  an  implied  special  contract,  and  it  is  not  limited  by  any  state- 
ments written  or  printed  on  the  check  or  ticket  not  signed  by  the 
passenger.  In  support  of  this  doctrine  see  Quimby  v.  Vanderbilt, 
17  N.  Y.  306;  also  Kessler  v.  N.  Y.  C.  R.  Co.,  7  Lans.  62;  Code 
of  Ga.,  §  2068. 

[On  another  point  judgTnent  reversed.'^ 


FRANK  V.   INGALLS. 
41  Ohio  St.  560.     1885. 

Nash,  J.  The  plaintiff  in  error  seeks  to  have  the  judgment  of  the 
District  Court  reversed  on  the  theory  that  a  railroad  passenger 
ticket,  like  those  described  in  the  statement  of  facts,  is  negotiable 
and  passes  by  delivery  from  the  holder  to  a  purchaser,  and  that  any 
person  purchasing  and  receiving  such  ticket  from  any  holder  thereof 
takes  it  freed  of  all  equities  of  the  railroad  company,  or  defects  of 
title,  or  want  of  authority  in  the  seller  to  dispose  of  it. 

The  character  of  a  railroad-passenger  ticket  has  been  considered 


682  CARRIERS   OF   PASSENGERS. 

by  the  Supreme  Court  of  this  State.  In  the  case  of  C.  C.  &  C,  E. 
R.  Co.  V.  Bartram,  11  Ohio  St.  457,  it  is  spokeu  of  as  "a  convenieut 
symbol  to  represent  the  fact  that  the  bearer  has  paid  to  the  com- 
pany the  agreed  price  for  his  conveyance  upon  the  road  to  the  place 
therein  designated."  Again,  in  the  case  of  Railroad  Company  v. 
Campbell,  36  Ohio'  St.  647,  it  is  said  that  a  railroad  ticket  ''is 
simply  a  voucher  that  the  person  in  whose  possession  it  is,  has  paid 
his  fare."  Lawson,  in  his  work  on  "Contracts  of  Carriers,"  sec. 
106,  p.  116,  says,  ''that  a  railroad  or  steamboat  ticket  is  nothing  more 
than  a  mere  voucher  that  the  party  to  whom  it  is  given,  and  in  whose 
possession  it  is,  has  paid  his  fare  and  is  entitled  to  be  carried  a  cer- 
tain distance,"  and  supports  his  definition  by  the  citation  of  numer- 
ous decisions. 

It  thus  seems  to  be  well  established  that  a  railroad  ticket  is  a  re- 
ceipt or  voucher.  It  has  more  the  character  of  personal  property 
than  that  of  a  negotiable  instrument.  When  the  possession  of  such 
a  ticket  has  been  obtained  by  fraud  the  company  has  parted  Avith 
the  possession  of  it,  but  not  with  the  title  to  it,  and  the  person  pur- 
chasing from  the  holder,  although  for  value  and  without  notice  of 
equities,  takes  no  better  title  than  the  party  had  who  fraudulently 
obtained  possession  of  it.  We  do  not  perceive  that  the  holder  of 
such  a  ticket  is  in  any  better  position  than  the  bo7ia  fide  purchaser 
of  goods  from  one  in  possession,  for  a  valuable  consideration,  and 
without  notice  of  any  defect  in  his  vendor's  title.  Such  a  purchaser 
cannot  be  protected  against  the  title  of  the  true  owner  in  a  case 
where  the  vendor  has  fraudulently  obtained  his  possession  and 
without  the  knowledge  or  consent  of  the  owner,  although  previous 
to  such  possession  he  had,  by  false  and  fraudulent  representations, 
induced  the  owner  to  enter  into  a  contract  for  the  sale  of  the  goods. 
Dean  v.  Yates,  22  Ohio  St.  388;  Hamet  v.  Letcher,  37  Ohio  St.  356. 

From  the  facts  found  by  the  courts  below  it  appears  that  the  pos- 
session of  the  tickets  in  controversy  were  obtained  from  Ingalls, 
receiver  of  the  railroad  company,  by  the  fraud  of  Fordyce,  and  we 
conclude  that  Frank,  the  purchaser  from  Fordyce,  obtained  no  title 
thfroto. 

Eagan,  the  agent  of  the  receiver,  antliorized  to  sell  such  tickets, 
and  stamp  and  deliver  the  same  upon  receiving  pay  therefor,  did  not 
bind  his  principal  wlien  he  stamped  and  delivered  the  tickets,  with- 
out his  knowledge  or  consent,  to  a  third  person,  to  be  sold  by  him, 
and  to  be  paid  for  wlien  sold. 

Judgment  affirmed. 


TICKETS.  683 


SLEEPER  V.   PENNSYLVANIA  RAILROAD  CO. 
100  Penn.  St.  259.     1882. 

Case,  by  George  W.  Sleeper  against  the  Pennsylvania  Railroad 
Co.,  to  recover  damages  for  an  illegal  ejecting  of  plaintiff  from  de- 
fendant's train. 

On  the  trial  the  plaintiff  testified  that  on  the  morning  of  May  8th, 
1878,  he  took  passage  on  the  defendant's  train  from  New  York  to 
Philadelphia  and  tendered  to  the  conductor  in  payment  of  his  fare 
a  ticket  which  he  had  bought  several  months  before  at  a  place  on 
Broadway,  New  York,  not  a  regular  agency  of  the  company,  but  a 
place  where  they  advertised  tickets  at  reduced  rates.  He  further  tes- 
tified that  he  paid  for  the  ticket  one  dollar  less  than  the  current 
rates.  The  conductor  refused  to  receive  the  ticket,  and  upon  plain- 
tiff's refusing  to  pay  the  fare  put  him  off  the  train  at  Elizabeth. 
The  present  suit  was  then  brought.  The  court  on  motion  of  defend- 
ant awarded  a  nonsuit,  which  the  court  in  banc  subsequently  declined 
to  take  off.  Plaintiffs  thereupon  took  this  writ,  assigning  for  error 
the  granting  of  the  nonsuit  and  the  refusal  to  take  off  the  same. 

Mr,  Justice  Trunket.  The  parties  agree  that  this  case  presents 
a  single  question,  whether  a  person  purchasing  a  ticket  over  the 
Pennsylvania  Railroad  from  New  York  to  Philadelphia,  from  a 
ticket-dealer  who  is  not  an  authorized  agent  of  the  company,  can 
maintain  an  action  in  the  courts  of  this  State  for  the  refusal  of  the 
company  to  carry  him  between  these  points  in  return  for  said  ticket. 

By  the  Act  of  May  6th,  1863,  P.  L.  582,  it  is  made  the  duty  of 
every  railroad  company  to  provide  each  agent  authorized  to  sell 
tickets  entitling  the  holder  to  travel  upon  its  road,  with  a  certificate 
attested  by  the  corporate  seal  and  the  signature  of  the  officer  whose 
name  is  signed  to  the  tickets.  And  any  person  not  possessed  of 
such  authority,  who  shall  sell,  barter,  or  transfer,  for  any  considera- 
tion, the  whole  or  any  part  of  a  ticket,  or  other  evidence  of  the 
holder's  title  to  travel  on  any  railroad,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall  be  liable  to  be  punished  by  fine  and  impris- 
onment. The  purchasing  and  using  a  ticket  from  a  person  who  has 
no  authority  to  sell,  is  not  made  an  offence. 

That  the  plaintiff's  ticket,  on  its  face,  entitled  him  to  the  rights 
of  a  passenger  between  the  points  named,  is  unquestioned.  The 
only  reason  for  denying  him  such  right  was  that  he  bought  from  one 
who  sold  in  violation  of  the  statute  in  Pennsylvania.  It  is  not 
said  that  the  vendor  in  New  York  is  actually  guilty  of  the  statutory 
offence,  but  that  the  defendant,  being  a  corporation  in  Pennsylvania, 
and  the  stipulated  right  of  j^assage  being  partly  in  Pennsylvania, 


6S4  CARRIERS   OF   PASSENGERS. 

her  courts  will  not  enforce  a  contract  resting  upon  acts  which  the 
legislature  has  declared  criminal. 

The  presumption  is  that  the  ticket  was  properly  issued  by  the 
compan}-,  and  that  the  holder  had  the  right  to  use  it.  Such  tickets 
are  evidence  of  the  holder's  title  to  travel  on  the  railroad.  Prior  to 
the  statute  in  Pennsylvania,  it  was  lawful  for  holders  to  sell  them. 

The  property  in  them  passed  by  delivery.  The  Act  of  1863  con- 
fers no  right  upon  a  railroad  company  to  question  passengers  as  to 
when,  or  where,  or  how  they  procured  their  tickets,  or  to  eject  them 
from  the  cars  upon  suspicion  that  the  tickets  were  sold  to  them  by  a 
person  who  was  not  an  agent  for  the  company.  At  common  law, 
which  is  deemed  in  force  in  absence  of  evidence  to  the  contrary,  the 
contract  made  by  the  plaintiff  in  New  York  was  valid.  It  was 
executed.  No  part  remained  to  be  performed.  It  vested  in  him 
the  evidence  of  title  to  a  passage  over  the  railroad.  His  act  had  no 
savor  of  illegality  or  immorality.  It  was  the  mere  purchase  of  the 
obligation  of  a  common  carrier,  to  carry  the  holder  according  to  its 
terms.  The  defendant  issued  the  obligation,  received  the  consider- 
ation, and  became  liable  for  performance  at  the  date  of  issue.  As 
transferee,  the  plaintiff  claimed  performance.  This  is  the  contract 
which  is  the  basis  of  the  cause  of  action.  It  is  purposely  made  so 
as  to  entitle  the  bona  fide  holder  to  performance,  and  for  breach  to 
an  action  in  his  own  name.  Let  it  be  assumed  that  the  defendant 
made  the  contract  in  Pennsylvania,  it  is  quite  as  reasonable  to 
assume  that  tickets  for  passengers  coming  from  New  York  into 
Pennsylvania  were  sold  in  New  York.  But  wherever  the  contract 
was  made,  it  is  true,  as  claimed  by  the  defendant,  "this  action  is 
to  enforce  not  the  contract  between  the  ticket-scalper  and  the  plain- 
tiff in  error,  but  between  the  defendant  in  error  and  the  plaintiff"  in 
error." 

The  sale  of  the  ticket  to  the  plaintiff  in  New  York  was  lawful. 
That  being  an  executed  contract,  there  is  no  question  respecting  its 
enforcement.  Surely  it  is  not  an  exception  to  the  rule  that  con- 
tracts, valid  by  the  law  of  the  place  where  they  are  made,  are 
generally  valid  everywhere.  Then,  as  the  plaintiff'  has  a  valid  title 
to  the  ticket,  the  contract  between  the  defendant  and  himself  is 
valid. 

Jiuhjment  reversed  and  procedendo  awarded. 


KEGULATIONS.  685 


8.    REGULATIONS. 

JEFFERSONVILLE   R.    CO.   v.    ROGERS. 
28  Ind.  1.     1867. 

Frazer,  J.  This  was  a  suit  by  the  appellee  against  the  appellant 
for  imlawfuUy  expelling  the  appellee  from  its  cars.  The  complaint 
alleged  that  the  defendant's  ticket  agent  refused  to  sell  a  ticket  to  the 
plaintiff;  that  he  thereupon  seated  himself  in  the  car  without  such 
ticket,  for  the  purpose  of  being  carried  from  Indianapolis  to  Colum- 
bus, and  tendered  the  usual  ticket  fare  to  the  conductor,  who  refused 
that  sum  and  demanded  a  greater  sum  by  fifteen  cents ;  and  upon  a 
refusal  by  the  plaintiff  to  pay  the  sum  demanded,  he  was,  by  the 
defendant,  expelled  from  the  vehicle  three  miles  from  a  station. 

The  answer  was  in  two  paragraphs.  The  first  was  a  general 
denial,  under  which  the  matter  pleaded  in  the  second  was  admissible 
in  evidence,  and  there  was  therefore  no  available  error  in  sustaining 
a  demurrer  to  the  latter. 

Various  questions  are  made  upon  the  instructions  to  the  jury, 
and  as  to  the  admissibility  of  evidence,  all  of  which  are  in  the 
record  by  an  unsuccessful  motion  for  a  new  trial,  there  having  been 
a  verdict  for  the  plaintiff  in  the  sum  of  f  345. 

The  evidence  established  the  averments  of  the  complaint  upon 
every  point,  save  that  the  plaintiff  had  applied  for  and  been  refused 
a  ticket.  Upon  that  subject  there  was  a  conflict.  It  appeared,  too, 
that  the  appellant  discriminated  in  its  charges  for  passage  in  favor 
of  persons  holding  tickets;  the  usual  rate,  if  paid  on  the  train,  being 
$2.10,  and  the  usual  rate  for  a  ticket  $1.95.  That  the  ticket  agent 
was  at  that  time  supplied  with  tickets,  and  instructed  to  sell  them, 
was  clearly  proven.  Tickets  were  sold  to  other  persons  at  that  time, 
and  for  Columbus.  If,  therefore,  he  refused  a  ticket  to  the  appellee, 
it  was  of  his  own  motion  and  in  violation  of  his  duties  as  agent  of 
the  appellant.  The  appellant  existed  under  a  special  charter  (local 
laws  of  1846,  p.  153),  which  gave  it  full  power  to  fix  its  rates  of 
passenger  fares,  "  provided  that  the  rates  established  from  time  to 
time  shall  be  posted  up  at  some  conspicuous  place  or  places  on  said 
road;"  and  this  had  been  done  as  to  the  rates  then  usual,  both  for 
tickets  and  when  payment  was  made  on  board  to  the  conductor. 

It  is  not  controverted  that  the  appellant  had  the  right,  for  its  own 
protection  against  the  possible  dishonesty  of  conductors,  and  for  the 
convenient  transaction  of  its  business,  to  discriminate  in  favor  of 
persons  purchasing  tickets.     The  regulation  is  a  reasonable  one,  if 


686  CARRIERS    OF   PASSENGERS. 

carried  out  by  the  corporation  in  good  faith.     It  tends  to  protect 
the   corporation  from  the  frauds  of  its   conductors,   and   from  the 
inconvenience  of  collecting  fares  upon  its  trains  in  motion ;  and  it 
imposes  no  hardship  whatever  upon  travellers.     But  if  the  corpora- 
tion may  refuse  to  furnish  the  tickets,  and  thus  fail  to  do  what  is 
plainly  implied  by  the  adoption  and  publication  of  the  rule,  it  would 
be  unreasonable,  and  therefore  not   binding   upon   its   passengers. 
Such  a  corporation  cannot  be  sustained,  in  so  far  as  it  assumes  to 
be  the  arbitrary  master  of  its  patrons.     It  is  a  common  carrier  of 
passengers,  and  must  perform  the  obligations  which  the  law  imposes 
upon  it  as  such.     It  has  no  lawful  authority  to  impose  upon  travel- 
lers by  vexatious  and  deceptive  rules  and  regulations,  such  as  the 
one  under  consideration  would  obviously  be,  if  it  does  not  carry 
with  it  an  obligation  on  the  part  of  the  corporation  to  afford  passen- 
gers the  opportunity  to  avail  themselves  of  the  discrimination  in 
fares  which  it  publicly  offers.     That  such  an  obligation  does  arise 
out  of  the  adoption  of  such  a  regulation  was  expressly  ruled  in 
Illinois.     Chicago,  &c.  Co.  <-.  l\arks,  18  111.  460,  and  St.  Louis,  &c. 
Co.  V.  Dalby,  19  111.  353.     The  latter  case  is  precisely  in  point  liere, 
it  being  held  that  the  passenger,  having  been  unable  to  procure  a 
ticket  through  the  fault  or  neglect  of  the  railroad  company's  ticket 
agent,  had  a  right  to  be  carried  at  the  ticket  rate,  and  that  upon 
tender  of  that  sum  to  the  conductor,  his  subsequent  expulsion  from 
the  train  was  a  wrong  for  which  the  corporation  was  liable. 

In  New  York,  the  subject  has  been  regulated  to  some  extent  by 
statute.  To  ask  or  receive  a  greater  rate  of  fare  than  that  allowed 
by  law,  entitles  the  passenger  to  recover  the  sum  of  fifty  dollars  as 
a  penalty.  The  Now  York  Central  liailroad  Company  is  required 
to  keep  its  ticket  office  at  Utica  open  for  the  sale  of  tickets  for  an 
hour  prior  to  the  departure  of  each  train,  but  it  is  not  required  to 
kt-ep  such  office  open  between  11  o'clock  p.  m.  and  5  o'clock  a.  m.  ; 
and  if  a  person  at  any  station  where  a  ticket  office  is  open  enters  the 
cars  as  a  i)assenger,  without  a  ticket,  the  company  may  charge  five 
cents  in  addition  to  the  usual  fare,  which  is  fixed  at  two  cents  per 
mile.  In  Nellis  v.  New  York  Central  liailroad  Company,  30  N.  Y. 
50."),  where  a  passenger  from  Utica  entered  the  train  without  a 
ticket,  at  1  o'clock  a.  m.,  when  the  ticket  office  was  not  o])en,  and 
was  compelled  to  pay  the  additional  five  cents,  it  was  held  that  the 
penalty  was  incurred.  It  was  argued  there  that  the  case  was  not 
within  the  statute,  liccause  the  ticket  office  was  not  required  to  be 
open  at  that  hour;  and  upon  that  point  it  is  said,  in  the  opinion  of 
the  court:  "It  is  insisted  that  because  the  jdaintilT  did  not  do 
what  it  was  impossible  for  him  to  do,  to  wit,  buy  a  ticket  before 
leaving  Utica,  he  became  lialde  to  pay  the  extra  fare.  It  seems  to 
me  the  proposition  has  but  to  be  stated  to  be  rejected  as  utterly 
unsound.  To  comixd  a  passenger  to  jiay  a  penalty  because  the 
company  had  dejirivcd  him  of  tlie  power  to  travel  for  tin'  reu'ular 


REGULATIONS.  687 

fare,  would  be  so  oppressive  and  unjust  that  it  would  require  a  posi- 
tive provision  of  a  legislative  act  to  induce  any  tribunal  to  sanction 
it."  Though  that  case  arose  under  the  statutes  of  New  York,  and 
might  have  been  decided  without  touching  upon  the  subject  dis- 
cussed in  the  passage  quoted,  yet  the  reasoning  of  the  quotation  is 
so  forcible  and  so  directly  applicable  to  the  point  under  considera- 
tion here  that  it  may  well  be  deemed  an  authority.  And  the  fact 
that  a  State  like  New  York,  largely  interested  in  commerce,  and 
whose  known  policy  it  is,  in  every  proper  way,  to  foster  her  great 
corporations  engaged  in  the  transportation  of  passengers,  should,  by 
statute,  make  their  right  to  discriminate  in  fares  depend  upon  their 
affording  the  passenger  an  opportunity  to  avail  himself  of  the  dis- 
crimination, is  worth  some  consideration  when  the  inquiry  is  whether 
such  a  discrimination  can  be  upheld  as  reasonable  without  the  cor- 
responding obligation  upon  the  carrier. 

Opposed  to  the  doctrine  already  announced,  Crocker  v.  New  Lon- 
don, &c.  Co.,  24  Conn.  249,  stands  alone,  so  far  as  we  know.  The 
facts  of  that  case  were  much  like  the  one  at  bar,  except  that  the 
ticket  office  was  closed  for  the  night,  to  be  opened  as  usual  there- 
after. That  fact  was  held  as  proof  that  the  company  had  withdrawn 
its  proposition  to  carry  at  ticket  rates,  and  was  therefore  not  bound 
to  carry  a  passenger  tendering  to  the  conductor  merely  the  price  of 
a  ticket.  The  law  certainly  deduces  no  such  conclusion  from  the  fact 
of  closing  a  ticket  office,  as  was  reached  in  that  case,  to  wit :  that 
the  offer  to  carry  at  ticket  rates  was  withdrawn.  It  is  a  conclusion 
of  fact  and  not  of  law,  and  we  think  not  at  all  a  legitimate  one. 
The  Supreme  Court  of  Iowa,  in  citing  this  case  to  another  point,  in 
the  State  v.  Chovin,  7  Iowa,  204,  very  properly  disclaimed  any 
purpose  to  be  understood  as  concurring  with  the  case  upon  the 
question  now  under  examination.  But  the  Connecticut  case  can 
have  no  application  whatever  to  the  inquiry  as  it  arises  in  the 
present  case,  for  here  the  evidence  is  clear  that  the  offer  was  not 
withdrawn ;  that  the  agent  was  supplied  with  tickets  and  instructed 
to  sell  tliem,  and  did  actually  sell  them  on  that  occasion  to  other 
passengers  for  Columbus. 

The  court  refused  the  following  instruction,  asked  by  ihe 
appellant :  — 

"If  you  believe,  from  the  evidence,  that  the  plaintiff  did  not 
apply  for,  and  was  not  refused  a  ticket,  as  alleged  in  his  complaint, 
and  that  he  refused  to  pay  to  the  conductor  of  said  train  the  regular 
and  usual  fare  fixed  by  said  company  for  a  passage  paid  upon  the 
cars,  then  the  said  conductor  would  have  a  right  to  eject  the  plaintiff 
from  said  cars,  using  no  more  force  than  was  necessary  for  that  pur- 
pose, even  though  between  stations." 

The  question  thus  presented  is,  whether  the  expulsion,  if  other- 
wise rightful,  might  lawfully  occur  elsewhere  than  at  a  station. 
This  question,  in  the  case  before  us,  does  not  depend  upon  a  statute. 


688  CAKRIEKS   OF   PASSENGERS. 

Our  general  railroad  law,  1  G.  &  H.  516,  does  not  apply  to  the  appel- 
lant, and  its  charter  is  silent  upon  the  subject.  It  is  said  in  the 
briefs,  which  have  evidently  been  prepared  with  great  care,  that 
the  question  is  without  direct  authority.  The  passenger  who  refuses 
to  pay  fare  is  from  that  moment  an  intruder,  and  wrongfully  on  the 
train.  He  has  no  "lawful  right  to  be  carried  gratis  to  the  next 
station.  This  is  too  plain  to  admit  of  debate.  It  follows  that  he 
may  be  expelled  at  once.  There  may  be  public  considerations,  such 
as  the  danger  of  collisions  resulting  from  stopping  trains  between 
stations,  or  the  peril  to  the  travelling  public  consequent  upon  the 
increase  of  speed  necessary  to  regain  time  thus  lost,  which  justify 
the  enactment  of  a  law  that  the  expulsion  must  occur  at  a  station. 
These  considerations,  however,  form  no  basis  for  a  claim  by  a 
passenger  to  be  carried  gratuitously  from  one  station  to  the  next. 
The  refusal  to  give  this  instruction  must  reverse  the  judgment. 

The  judgment  is  reversed,  with  costs,  and  the  cause  remanded  for 
a  new  trial. 


EVERETT   V.    CHICAGO,    etc.    R.    CO. 
09  Iowa,  15.     1S86. 

Ox  the  morning  of  August  IS,  ISSl,  the  plaintiff  took  passage  on 
defendant's  railroad  at  a  small  station  named  Weston,  intending  to 
travel  to  Council  Bluffs,  a  distance  of  ten  miles.  He  did  not  pro- 
cure a  passenger  ticket,  and  the  conductor  of  the  train  demanded  ten 
cents  in  addition  to  the  ticket  rate,  which  the  plaintiff  refused  to 
pay.  Tliereupon  tlie  conduftor  caused  the  train  to  be  stopped,  and 
he  forcibly  ejected  the  idaintiff  therefrom.  This  action  was  brought 
to  recover  damages  for  the  alleged  wrongful  act  of  the  conductor  in 
removing  the  jjlaintiff  from  tlie  train.  A  trial  by  jury  resulted  in  a 
verdict  and  judgment  for  the  defendant.     Plaintiff  appeals. 

RoTiiKOCK,  J.  I.  It  is  provided  by  section  2  of  chapter  GS  of 
the  Laws  of  1874,  Miller's  Code,  .'U7,  that  "a  charge  of  ten  cents 
may  be  added  to  the  fare  of  any  passenger  where  the  same  is  paid 
U[)on  the  cars,  if  a  ticket  might  liave  been  procured  within  a  reason- 
al)lo  time  before  the  departure  of  the  train."  The  ground  upon  wliich 
the  plaintiff  baserl  his  refusal  to  j)ay  the  ten  cents  demanded  by  the 
conductor  was  that  he  was  ])revented  from  procuring  a  ticket,  because 
the  ticket  office  was  closed  when  he  presented  himself  for  the  pur- 
pose of  purcha.sing  a  ticket.  The  facts  are  that  the  ])laintiff  is  the 
owner  of  a  large  farm  some  five  miles  from  Weston.  His  residence 
is  at  Council  iJluffs,  and  Iw;  made  frequent  visits  to  his  farm,  going 


REGULATIONS.  689 

by  rail  by  the  way  of  Weston.  He  knew  that  the  defendant  was 
authorized  to  collect  ten  cents,  in  addition  to  the  ticket  rate,  from 
passengers  who  neglected  to  })urchase  tickets  at  the  station.  Wes- 
ton is  a  small  and  unimportant  station  at  which  an  inconsiderable 
amount  of  business  is  done  by  the  railroad  company,  either  in 
freight  or  passenger  traffic.  As  is  usual  at  such  places,  the  company 
keeps  no  assistant  for  the  agent;  and,  when  a  train  arrives,  the 
agent  leaves  the  ticket  office,  and  goes  upon  the  platform  of  the 
station  to  transact  his  business  with  the  train ;  such  as  seeing  to  the 
loading  of  the  mail  on  the  train,  the  receipt  and  delivery  of  baggage 
and  express  packages,  and  the  like.  The  plaintiff  came  in  from  his 
farm  in  the  morniug,  and  stopped  at  a  store  in  the  village  until  he 
heard  the  whistle  of  the  train  as  it  approached  the  station,  when  he 
went  to  the  station,  and  arrived  there  just  before  the  train  came  to 
a  full  stop.  The  ticket  agent  had  the  office  open  for  a  considerable 
time  before  the  train  arrived,  and  sold  tickets  to  passengers,  and  he 
did  not  leave  the  office  until  the  engine  to  which  the  train  was 
attached  had  passed  the  office  window,  when  he  went  on  the  plat- 
form to  attend  to  his  train  duties.  The  train  stops  at  that  station 
only  long  enough  to  do  the  train  business  and  allow  passengers  to 
get  on  and  off  the  cars. 

The  court  permitted  all  these  facts  to  be  shown  to  the  jury,  and 
charged  the  jury  to  the  effect  that  if,  under  all  these  facts  and  cir- 
cumstances, a  reasonable  time  was  given  to  passengers  to  purchase 
tickets  before  the  departure  of  the  train,  the  conductor  was  autho- 
rized to  demand  the  extra  ten  cents  of  the  plaintiff.  One  of  the 
instructions  to  the  jury  was  as  follows :  "  (6)  The  fact,  if  it  is  a  fact, 
that  the  plaintiff  applied  at  the  defendant's  ticket  office  at  Weston 
to  purchase  a  ticket  at  a  time  when  it  was  closed,  does  not  of  itself 
alone  necessarily  show  that  opportunity  was  not  given  within  a 
reasonable  time  before  the  departure  of  the  train  for  the  purchase  of 
tickets ;  nor  can  it  be  said,  as  matter  of  law,  that  the  defendant  had 
a  right  to  close  its  ticket  office  as  soon  as  the  train  arrived  at  the 
station.  The  question,  what  is  a  reasonable  time  for  the  procuring 
of  tickets  before  the  departure  of  trains  from  a  station,  depends 
principally  on  the  requirements,  convenience,  and  demands  of  the 
public  at  that  particular  station.  It  was  the  duty  of  defendant  to 
keep  its  ticket  office  open,  and  to  keep  a  competent  man  there  to  sell 
tickets  at  such  times  as  would  reasonably,  fairly,  and  fully  accommo- 
date the  public  in  the  matter  of  procuring  tickets.  Eegard  should 
be  had  to  the  importance  of  the  station,  and  the  number  of  people 
who  have  occasion  to  purchase  tickets  there ;  and  the  ticket  office 
should  be  kept  open  at  such  times  as  people  in  general  who  travel 
by  rail  are  in  the  habit  of  repairing,  and  find  it  convenient  to  repair, 
to  the  station  to  purchase  tickets  and  get  aboard  the  train." 

Counsel  for  appellant  insist  that  this  and  other  instructions  given 
by  the  court  to  the  jury  are  erroneous.     They  claim  that,  under  a 

44 


690  CARRIERS   OF   PASSENGERS. 

proper  construction  of  the  statute  above  cited,  it  was  the  duty  of  the 
railroad  company  to  keep  its  ticket  office  open  up  to  the  time  of  the 
departure  of  the  train :  in  other  words,  they  claim  that  by  the  very 
terms  of  the  statute  the  office  must  be  kept  open  for  the  sale  of  tick- 
ets just  so  long  as  it  is  possible  for  passengers  to  purchase  tickets 
and  board  the  train.  Assuming  this  to  be  the  meaning  and  intent 
of  the  statute,  they  contend  that  it  was  error  for  the  court  to  submit 
to  the  jury  the  question  whether,  under  the  facts,  the  office  was  kept 
open  a  reasonable  time  in  which  passengers  might  procure  tickets. 
We  do  not  think  this  position  is  sound.  In  our  opinion,  it  was 
proper  to  allow  the  defendant  to  introduce  evidence  of  the  character 
of  the  station,  and  whether  the  facilities  extended  to  the  travelling 
public  to  purchase  tickets  were  such  as  were  required  for  the  con- 
venience of  the  public.  It  would  be  a  most  unreasonable  require- 
ment to  impose  upon  the  defendant  the  burden  of  employing  two 
persons  to  attend  to  the  station  in  order  that  the  ticket  office  might 
be  kept  open  for  the  one  or  two  minutes  which  a  train  is  required 
to  stop  at  such  a  station,  in  order  to  accommodate  the  exceptional 
cases  of  passengers  who  may  for  any  reason  arrive  at  the  station 
after  the  arrival  of  the  train.  Kegard  must  be  had  to  the  orderly 
transaction  of  the  business  of  the  station,  taking  into  consideration 
the  necessary  and  proper  facilities  extended  to  persons  having  occa- 
sion to  travel  on  the  trains  or  transact  other  business  with  the  com- 
pany. It  is  absolutely  necessary  that  the  office  should  be  open  for 
business  a  sufficient  time  before  the  departure  of  the  train,  in  order 
to  enable  passengers  to  procure  their  tickets,  receive  and  count  their 
change,  if  any,  and  prepare  to  board  the  train,  without  unnecessary 
interference  with  each  other.  But  the  language  "  before  the  depar- 
ture of  the  train  "  does  not  require  that  the  office  shall  remain  open 
up  to  the  instant  the  train  moves  off.  The  question  is,  might  the 
passenger  have  procured  a  ticket  within  a  reasonable  time  before 
the  departure,  and  not  up  to  the  very  moment  when  the  wheels  be- 
gan to  move. 

II.  Some  complaint  is  made  as  to  the  place  where  the  plaintiff 
was  ejected  from  the  cars.  It  appears  that  it  was  half  a  mile  from 
a  public  crossing.  It  is  not  required  in  this  State  that,  where  a  per- 
son may  rightfully  be  ejeoted  from  a  railroad  train,  it  must  be  done 
at  a  station  or  public  crossing.  Brown  v.  Railroad  Co.,  51  Iowa, 
235.  In  the  case  at  bar,  all  of  the  facts  attending  the  removal  of 
the  plaintiff  from  the  train,  and  the  place  where  he  was  removed, 
were  fairly  submitted  to  the  jury  on  what  we  regard  as  j)r()per  in- 
structions; and  the  jury,  in  answer  to  a  special  interrogatory,  found 
that  the  conductor  did  not  act  with  malice,  express  or  implied, 
towards  plaintiff  in  ejecting  him  from  the  train.  We  think  this 
finding  was  fully  sui»i»f)rted  by  the  evidence. 

III.  Tlie  jdaintiff"  offt-rcd  to  introduce  evidence  to  the  effect  that 
the  defendant's  station  was  an  unfit  place  for  passengers  tn  icmniii 


KEGULATIONS.  691 

in  waiting  for  trains  because  of  the  close  proximity  of  a  privy.  The 
evidence  was  excluded,  and  plaintiff's  counsel  complain  of  this  rul- 
ing of  the  court.  We  think  it  was  correct.  The  plaintiff  did  not 
allege  this  as  a  reason  why  he  did  not  go  to  the  station  and  procure 
a  ticket,  and  he  made  no  such  claim  to  the  conductor.  His  sole 
ground  of  recovery  was  based  upon  the  alleged  fact  that  he  could 
not  procure  a  ticket  because  the  office  was  closed. 

We  think  the  judgment  of  the  district  court  should  be 

Affirmed. 


TOWNSEND  V.   N.    Y.    CENTEAL   &   H.    R.   E.   CO. 
56  N.  Y.  295.     1874. 

Gkoveb,  J.  This  action  was  brought  by  the  plaintiff  to  recover 
damages  for  an  assault  upon  and  forcibly  ejecting  him  from  its  cars, 
at  Staatsburg,  a  station  on  defendant's  road  between  Poughkeepsie 
and  Ehinebeck. 

The  jury  by  their  verdict  have  found  that  the  plaintiff  purchased 
a  ticket  at  the  station  of  Sing  Sing  for  Ehinebeck;  that  with  this 
ticket  he  went  on  board  a  train  from  New  York,  going  no  farther 
north  than  Poughkeepsie;  that  after  this  train  passed  Peekskill  the 
conductor  called  for  tickets  and  the  plaintiff  handed  his  to  him, 
which  he  took  and  retained,  giving  to  the  plaintiff  no  check  or  other 
evidence  showing  any  right  to  a  passage  upon  any  train  of  the  de- 
fendant ;  nor  did  the  plaintiff  ask  for  a  return  of  his  ticket  or  for 
any  such  evidence.  Upon  the  arrival  of  the  train  at  Poughkeepsie, 
where  it  stopped,  the  plaintiff  got  out  and  waited  at  the  station 
until  another  train  arrived  from  New  York,  which  was  going  to 
Albany,  stopping  at  Ehinebeck.  The  plaintiff  got  into  and  seated 
himself  in  a  car  in  this  train;  and  after  it  started  the  conductor 
called  upon  him  for  his  ticket;  in  reply  to  which  the  plaintiff  told 
him  that  he  had  purchased  a  ticket  from  Sing  Sing  to  Ehinebeck, 
which  the  conductor  of  the  other  train  had  taken  and  had  not  given 
back  to  him;  some  of  the  passengers  told  the  conductor  that  the 
plaintiff  had  had  such  a  ticket.  The  conductor  told  the  plaintiff 
that  it  was  his  duty  in  case  he  had  no  ticket  to  collect  the  fare,  and 
that  the  other  conductor  would  make  it  right  with  him.  The  plain- 
tiff refused  to  pay  fare,  and  the  conductor  told  him  he  must  leave 
the  train.  This  the  plaintiff  refused  to  do,  insisting  upon  his  right 
to  a  passage  to  Ehinebeck  upon  the  ticket  which  the  conductor  of 
the  other  train  had  taken.  Upon  the  arrival  of  the  train  at  Staats- 
burg, a  regular  station,  the  plaintiff,  still  refusing  to  pay  fare  or  to 
leave  the  train  upon  request,  was  taken  hold  of  and  such  force  used 


692  CARRIERS   OF   PASSFA'CERS. 

as  was  necessary  to  overcome  his  resistance,  and  ejected  from  the 
car.     This  was  the  injury  for  which  the  recovery  was  had. 

The  court,  among  other  things,  charged  the  jury  that  the  con- 
ductor seemed  to  have  done  no  more  than  his  duty  to  the  company 
as  between  him  and  the  company;  but  at  the  same  time  that  did  not 
excuse  the  company  for  the  wrongful  act  of  the  other  conductor  — 
for  which  act  they  were  responsible.     The  defendant's  counsel  re- 
quested the  court  to  charge  the  jury  that  this  was  not  a  case  for 
punitive  or  exemplary  damages.     The  court  declined  so  to  charge, 
and  in  reply  said:  "I  am  inclined  to  think  it  is  a  case  where  the 
jury  are  not  restricted  to  actual  injuries,  —  in  other  words,  to  com- 
pensatory damages."     To  this   the   counsel   for  the  defendant  ex- 
cepted.    This  exception  was  well  taken.     It  must  be  kept  in  mind 
that  the  injury  for  which  a  recovery  was  sought  was  the  forcible 
ejection  of  the  plaintiff  from  the  car  by  the  conductor  of  the  train, 
not  the  wrongful  taking  from  the  plaintiff  of  his  ticket  by  the  con- 
ductor of   the  other  train.      The  latter  was  regarded  as  material, 
only  as  making  the  former  act  wrongful  as  against   the   plaintiff. 
The  court,  in  substance,  charged  that  in  putting  the  plaintiff  oil"  the 
car  the  conductor  acted  in  what  he  believed  was  the  performance  of 
his  duty  to  the  company.     This  being  so,  it  is  clear  that  no  puni- 
tory damages  could  have  been  recovered  against  him  had  he  been 
sued  instead  of  the  company.     In  Hamilton  v.  The  Third  Avenue 
Railroad  Co.,  53  N.  Y.  25,  it  was  held  by  tliis  court  that  a  master 
was  not  liable  for  punitory  damages  for  the  act  of  his  servant,  done 
under  circumstances  which  would  give  no  such  right  to  the  plaintiff 
as  against  the  servant  had  the  suit  been  against  him  instead  of  the 
master.     Caldwell  v.  The  New  Jersey  Steamboat  Co. ,  47  X.  Y.  282, 
is  not  at  all  in  conflict  with  this;  nor  does  it  hold  that  a  master  is 
liable  to  punitory  damages  for  the  wrongful  act  of  his  servant  if 
free  from  any  wrong  of  his  own.     It  does  hold  that  a  corporation  is 
liable  for  punitory  damages  for  its  own  torts  and  breaches  of  duty. 
This  error  in  the  charges  requires  a  reversal  in  the  judgment  and  a 
new  trial. 

But  there  is  another  important  question  in  the  case  which  will 
necessarily  arise  upon  a  retrial,  and  which  was  raised  by  an  excep- 
tion taken  upon  tlie  trial  already  had :  that  is  whether  the  plaintiff 
had  a  right  to  go  upon  another  train  and  use  force  to  retain  a  seat 
there;  refusing  to  pay  fare,  having  no  evidence  of  any  right  to  a 
passage,  by  reason  of  tlie  conductor  of  the  other  train  having  wrong- 
fully taken  and  retained  his  ticket. 

It  is  insisted  by  the  counsel  for  the  plaintiff  that  tliis  question 
was  decided  in  favor  of  tlic  ])laintiff  in  Ilrimilton  r.  Third  Avenue 
Kailroad  Company,  ftupni.  Tliis  question  was  not  involved  or  de- 
cided in  that  case.  There  the  jdaintiff  testified  that  when  the  car 
upon  whieh  he  had  paid  liis  fare  to  the  City  Hall  stop])ed  at  an 
intermediate  station,  its  conductor  told  the  passengers  to  change 


REGULATIOXS.  693 

cars ;  that  before  going  on  board  the  car  from  which  he  was  ejected, 
he  inquired  of  its  conductor  whether  any  transfer  ticket  was  neces- 
sary;  that  the  conductor  told  him  it  was  not;  that  if  he  came  from 
tlie  other  car  he  could  go  on  board  the  one  from  which  he  was 
ejected.  This  was  equivalent  to  an  assurance  by  that  conductor 
that  he  could  ride  upon  the  car  under  his  control,  without  further 
payment  of  fare  or  evidence  of  a  right  so  to  do.  It  was  in  reference 
to  this  testimony  that  it  was  said  that  the  company  would  be  liable 
for  his  wrongful  ejection  from  the  car  by  the  conductor  who  had 
given  this  assurance.  But  testimony  was  given  by  the  defendant  in 
direct  conflict  with  this.  The  judge  erroneously  charged  the  jury 
that,  assuming  the  truth  of  the  latter  testimony,  and  that  the  con- 
ductor acted  in  good  faith  in  putting  the  plaintiff  off  the  car,  still 
he  was  entitled  to  recover  of  the  company  punitory  damages  if  he 
had  paid  fare  to  the  City  Hall  upon  the  other  car.  For  this  error 
the  judgment  was  reversed  and  a  new  trial  ordered  by  this  court. 

In  Hibbard  v.  The  New  York  &  Erie  Eailroad  Co.,  15  N.  Y.  455, 
it  was  held  by  this  court  that  a  railroad  company  had  the  right  to 
establish  reasonable  regulations  for  the  government  of  passengers 
upon  its  trains,  and  forcibly  eject  therefrom  those  who  refused  to 
comply  with  such  regulations.  Surely  a  regulation  requiring  pas- 
sengers either  to  present  evidence  to  the  conductor  of  a  right  to 
a  seat,  when  reasonably  required  so  to  do,  or  to  pay  fare,  is  reason- 
able; and  for  non-compliance  therewith  such  passenger  may  be 
excluded  from  the  car.  The  question  in  this  case  is  whether  a 
wrongful  taking  of  a  ticket  from  a  passenger  by  the  conductor  of 
one  train  exonerates  him  from  compliance  with  the  regulation  in 
another  train,  on  which  he  wishes  to  proceed  upon  his  journey.  I 
am  unable  to  see  how  the  wrongful  act  of  the  previous  conductor 
can  at  all  justify  the  passenger  in  violating  the  lawful  regulations 
upon  another  train.  For  the  wrongful  act  in  taking  his  ticket  he 
has  a  complete  remedy  against  the  company.  The  conductor  of  the 
train  upon  which  he  was,  was  not  bound  to  take  his  word  that  he 
had  had  a  ticket  showing  his  right  to  a  passage  to  Ehinebeck,  which 
had  been  taken  up  by  the  conductor  of  the  other  train.  His  state- 
ment to  that  effect  was  wholly  immaterial,  and  it  was  the  duty  of 
the  conductor  to  the  company  to  enforce  the  regulation,  as  was 
rightly  held  by  the  trial  judge,  by  putting  the  plaintiff  off  in  case 
he  persistently  refused  to  pay  fare.  The  question  is,  whether  under 
the  facts  found  by  the  jury,  resistance  in  the  performance  of  this 
duty  was  lawful  on  the  part  of  the  plaintiff.  If  so,  the  singular 
case  is  presented,  where  the  regulation  of  the  company  was  lawful, 
where  the  conductor  owed  a  duty  to  the  company  to  execute  it,  and 
at  the  same  time  the  plaintiff  had  the  right  to  repel  force  by  force 
and  use  all  that  was  necessary  to  retain  his  seat  in  the  car.  Thus, 
a  desperate  struggle  might  ensue,  attended  by  very  serious  conse- 
quences, when  both  sides  were  entirely  in  the  right,  so  far  as  either 


694  CARRIERS    OF   PASSENGERS. 

could  ascertain.  All  this  is  claimed  to  result  froui  the  -wrongful  act 
of  the  conductor  of  another  train,  in  taking  a  ticket  from  the  plain- 
tiff, for  which  wrong  the  plaintiff  had  a  perfect  remedy,  without 
inviting  the  commission  of  an  assault  and  battery  by  persisting  in 
retaining  a  seat  upon  another  train  in  violation  of  the  lawful  regu- 
lations by  which  those  in  charge  were  bound  to  govern  themselves. 
It  was  conceded  by  the  counsel,  upon  the  argument,  that  one  buy- 
ing a  ticket,  say  from  Albany  for  Buffalo,  which  was  wrongfully 
taken  from  him  by  a  servant  of  the  company,  and  who  had  once 
been  put  off  for  a  refusal  to  pay  fare,  would  not  have  the  right  to  go 
upon  other  trains  going  to  Buffalo,  and,  if  forcibly  ejected  there- 
from, maintain  actions  against  the  company  for  the  injuries  so  in- 
flicted. The  reason  why  he  could  not,  given  by  the  counsel,  was, 
that  being  once  ejected  was  notice  that  he  could  not  have  a  seat 
upon  the  ticket  which  he  claimed  had  been  taken  from  him.  But 
when  the  conductor  in  charge  of  the  train  explicitly  tells  him  that 
he  cannot  retain  his  seat  upon  that  ticket,  that  he  must  pay  fare  or 
leave  the  car,  does  it  not  amount  to  the  same  thing  ?  He  then 
knows  that  he  cannot  proceed  upon  the  ticket  taken,  but  must 
resort  to  his  remedy  the  same  as  though  he  had  been  ejected.  If, 
after  this  notice,  he  waits  for  the  application  of  force  to  remove 
him,  he  does  so  in  his  own  wrong;  he  invites  the  use  of  the  force 
necessary  to  remove  him ;  and  if  no  more  is  applied  than  is  neces- 
sary to  effect  the  object,  he  can  neither  recover  against  the  conduc- 
tor or  company  therefor.  This  is  the  rule  deducible  from  the 
analogies  of  the  law.  No  one  has  a  right  to  resort  to  force  to  com- 
pel tlie  performance  of  a  contract  made  with  him  by  another.  He 
must  avail  himself  of  the  remedies  the  law  provides  in  such  case. 
This  rule  will  prevent  breaches  of  the  peace  instead  of  producing 
them;  it  will  leave  the  company  responsible  for  the  wrong  done  by 
its  servant  without  aggravating  it  by  a  liability  to  pay  thousands  of 
dollars  for  injuries  received  by  an  assault  and  battery,  caused  by 
the  faithful  efforts  of  its  servants  to  enforce  its  lawful  regulations. 

The  judgment  appealed  from  must  be  reversed  and  a  new  trial 
ordered,  costs  to  abide  event. 

All  concur:  FoL<iER  and  Andrews,  JJ.,  concurring  on  the  first 
ground;  Chukch,  C.  J.,  concurring  on  last  ground  stated  in  opinion. 


FiiEDKiacK  ».  :\r.,  n.  .<i:  o.  k.  co. 

;57  Mich.  :'.12.     1877. 

Marstov,  J.  This  is  an  action  on  tlie  case  brought  to  recover 
damages  for  being  unlawfully  ejected  and  i)Ut  off  a  train  of  cars  by 
the  conductor  of  the  train.     The  evidence  on  llie  part  ol   tin-  jilain- 


REGULATIONS.  695 

tiff  tended  to  show  that  on  the  evening  of  January  29th,  187G,  he 
went  to  the  regular  ticket  office  of  the  defendant  at  Ishpeming  and 
asked  for  a  ticket  to  Marquette,  presenting  to  the  agent  in  charge 
of  the  office  one  doUar  from  which  to  make  payment  therefor;  that 
the  agent  received  the  money,  handed  plaintiff  a  ticket  and  some 
change,  retaining  sixty-five  cents  for  the  ticket,  the  regular  fare  to 
Marquette;  that  plaintiff  did  not  attempt  to  read  wliat  was  on  the 
ticket,  nor  did  he  count  the  change  received  back  until  next  morn- 
ing, or  notice  it  until  then;  that  he  went  on  board  the  train  bound 
for  Marquette,  and  after  the  train  left  the  station  the  conductor 
took  up  the  ticket,  giving  him  no  check  to  indicate  his  destination, 
but  at  the  time  telling  him  his  ticket  was  only  for  Morgan;  that 
when  the  train  reached  Morgan  the  conductor  told  the  plaintiff  he 
must  get  off  there  or  pay  more  fare ;  that  if  he  wanted  to  go  to  Mar- 
quette he  must  pay  thirty-five  cents  more ;  plaintiff  insisted  he  had 
paid  his  fare  and  purchased  his  ticket  to  Marquette,  and  refused  to 
pay  the  additional  fare,  whereupon  he  was  ejected  from  the  train, 
etc.     On  the  part  of  the  defendant  evidence  was  given  tending  to 
show  that  the  ticket  purchased  and  presented  to  the  conductor  was 
in  fact  a  ticket   for   Morgan  and  not  for  Marquette.       Under  the 
pleadings  and  charge  of  the  court  other  evidence  in  the  case  and 
questions  sought  to  be  raised  need  not  be  referred  to,  and  as  the  real 
gist  of  the  action  was  for  the  expulsion  from  the  cars  by  the  con- 
ductor, the  above  statement  is  deemed  sufficient  to  a  proper  under- 
standing of  the  case. 

An  erroneous  impression  seems  to  prevail  with  many  that  where 
the  conductor  of  a  passenger  train  ejects  therefrom  a  passenger  who 
has  paid  his  fare  to  a  point  beyond,  but  has  lost  or  mislaid  his 
ticket,  or  whose  ticket  does  not  entitle  him  to  proceed  further,  or 
upon  that  train,  that  the  company  is  liable  in  an  action  at  law  for 
all  damages  which  the  party  may  in  any  way  have  sustained  in  con- 
sequence of  the  delay,  mortification,  injury  to  his  health,  or  other- 
wise, and  that  the  passenger  is  under  no  obligation  to  prevent  or 
lessen  the  damages  by  payment  of  the  necessary  additional  fare  to 
entitle  him  to  complete  his  journey  without  interruption.  Although 
such  damages  were  claimed  in  this  case,  under  our  present  view  it 
will  be  unnecessary  to  discuss  this  question  any  farther  at  present. 

What  then  is  the  duty  of  the  conductor  in  a  case  like  the  present  ? 
and  what  are  the  passenger's  rights  ?  In  considering  these  ques- 
tions, we  cannot  shut  our  eyes  to  the  manner  and  method  which 
railroad  companies  and  common  carriers  generally  have  adopted  in 
order  to  successfully  carry  on  their  business.  The  view  to  be  taken 
of  these  questions  must  be  a  practical  one,  even  although  it  may 
work  perhaps  injustice  in  some  special  and  particular  cases,  result- 
ing, however,  in  great  part  if  not  wholly  from  other  causes.  In  Day 
V.  Owen,  5  Mich.  521,  Mr.  Justice  Manning  in  speaking  of  the  rules 
and  regulations  of  common  carriers,  said  '"  all  rules  and  regulations 


696  CARRIERS   OF   PASSENGERS. 

must  be  reasonable,  and,  to  be  so,  they  should  have  for  their  object 
the  accommodation  of  the  passengers.  Under  this  head  we  include 
everything  calculated  to  render  the  transportation  most  comfortable 
and  least  annoying  to  passengers  generally ;  not  to  one,  or  two,  or 
any  given  number  carried  at  a  particular  time,  but  to  a  large  major- 
ity of  the  passengers-  ordinarily  carried.  Such  rules  and  regulations 
sliould  also  be  of  a  permanent  nature,  and  not  be  made  for  a  partic- 
ular occasion  or  emergency." 

It  is  witliin  the  common  knowledge  or  experience  of  all  travellers 
that  the  uniform  and  perhaps  the  universal  practice  is  for  railroad 
companies  to  issue  tickets  to  passengers  with  the  places  designated 
thereon  from  whence  and  to  which  the  passenger  is  to  be  carried; 
that  these  tickets  are  presented  to  the  conductor  or  person  in  charge 
of  the  train  and  that  he  accepts  unhesitatingly  of  such  tickets  as 
evidence  of  the  contract  entered  into  between  the  passenger  and  his 
principal.  It  is  equally  well  known  that  the  conductor  has  but  sel- 
dom if  ever  any  other  means  of  ascertaining,  within  time  to  be  of  any 
avail,  the  terms  of  the  contract,  unless  he  relies  upon  the  statement 
of  the  passenger,  contradicted  as  it  would  be  by  the  ticket  produced, 
and  that  even  in  a  very  large  majority  of  cases,  owing  to  the  amount 
of  business  done,  the  agent  in  charge  of  the  office,  and  who  sold  the 
ticket,  could  give  but  very  little  if  any  information  upon  the  sub- 
ject. That  this  system  of  issuing  tickets,  in  a  very  large  majority 
of  cases,  works  well,  causing  but  very  little  if  any  annoyance  to  pas- 
sengers generally,  must  be  admitted.  There  of  course  will  be  cases 
where  a  passenger  who  has  lost  his  ticket,  or  where  through  mis- 
take the  wrong  ticket  had  been  delivered  to  him,  will  be  obliged  to 
])ay  his  fare  a  second  time  in  order  to  pursue  his  journey  without 
delay,  and  if  unable  to  do  this,  as  will  sometimes  be  the  case,  very 
great  delay  and  injury  may  result  therefrom.  Such  delay  and  in- 
jury would  not  be  the  natural  result  of  the  loss  of  a  ticket  or  breach 
of  the  contract,  but  wouM  be,  at  least  in  part,  in  consequence  of  the 
pecuniary  circumstances  of  the  party.  Such  cases  are  exceptional, 
and  however  unfortunate  the  party  may  be  who  is  so  situate,  yet  we 
must  remember  that  no  human  rule  has  ever  yet  been  devised  that 
would  not  at  times  injuriously  affect  those  it  was  designed  to  accom- 
modat<?.  This  method  of  jmrcliasing  tickets  is  also  of  decided 
advantage  to  the  public  in  other  respects;  it  enables  them  to  pur- 
chase tickets  at  times  and  places  deemed  suitable,  and  to  avoid 
thereby  the  crowds  and  delays  they  would  otherwise  be  subject  to. 
Were  no  tickets  issued  and  each  jjassenger  compelled  to  pay  his 
fare  ujjon  the  cars,  inconveni(Mice  and  drday  would  result  tlierefrom, 
or  the  officers  in  charge  of  the  tr.iin  to  collect  fares  would  be  in- 
crea.sed  in  numbers  to  an  uiireascjiiable  extent,  while  at  fairs  and 
places  of  public  amusement  where  tickets  are  issued  and  sold  enti- 
tling the  |)urchaser  to  admission  and  a  seat,  we  can  see  and  appreci- 
ate the  confusion  wliich  would  exist  if  no  tifUds  were  sold,  or  if 


REGULATIONS.  697 

the  party  presenting  the  ticket  were  not  upon  such  occasions  to  be 
bound  by  its  terms. 

How,  then,  is  the  conductor  to  ascertain  the  contract  entered  into 
between  the  passenger  and  the  railroad  company  where  a  ticket  is 
purchased  and  presented  to  him?  Practically  there  are  but  two 
ways,  —  one,  the  evidence  afforded  by  the  ticket;  the  other  the 
statement  of  the  passenger  contradicted  by  the  ticket.  Which 
should  govern?  In  judicial  investigations  we  appreciate  the  neces- 
sity of  an  obligation  of  some  kind  and  the  benefit  of  a  cross-exami- 
nation. At  common  law,  parties  interested  were  not  competent 
witnesses,  and  even  under  our  statute  the  witness  is  not  permitted, 
in  certain  cases,  to  testify  as  to  the  facts,  which,  if  true,  were 
equally  within  the  knowledge  of  the  opposite  party,  and  he  cannot 
be  procured.  Yet  here  would  be  an  investigation  as  to  the  terms 
of  a  contract,  where  no  such  safeguards  could  be  thrown  around  it, 
and  where  the  conductor,  at  his  peril,  would  have  to  accept  of  the 
mere  statement  of  the  interested  party.  I  seriously  doubt  the  prac- 
tical workings  of  such  a  method,  except  for  the  purpose  of  encour- 
aging and  developing  fraud  and  falsehood,  and  I  doubt  if  any  system 
could  be  devised  that  would  so  much  tend  to  the  disturbance  and 
annoyance  of  the  travelling  public  generally.  There  is  but  one  rule 
which  can  safely  be  tolerated  with  any  decent  regard  to  the  rights 
of  railroad  companies  and  passengers  generally.  As  between  the 
conductor  and  passenger,  and  the  right  of  the  latter  to  travel,  the 
ticket  produced  must  be  conclusive  evidence,  and  he  must  produce  it 
when  called  upon,  as  the  evidence  of  his  right  to  the  seat  he  claims. 
Where  a  passenger  has  purchased  a  ticket  and  the  conductor  does 
not  carry  him  according  to  its  terms,  or,  if  the  company,  through  the 
mistake  of  its  agent,  has  given  him  the  wrong  ticket,  so  that  he  has 
been  compelled  to  relinquish  his  seat,  or  pay  his  fare  a  second  time 
in  order  to  retain  it,  he  would  have  a  remedy  against  the  company 
for  a  breach  of  the  contract,  but  he  would  have  to  adopt  a  declara- 
tion differing  essentially  from  the  one  resorted  to  in  this  case. 

We  have  not  thus  far  referred  to  any  authorities  to  sustain  the 
views  herein  taken.  If  any  are  needed,  the  following,  we  think, 
will  be  found  amply  sufficient,  and  we  do  not  consider  it  necessary 
to  analyze  or  review  them.  Townsend  v.  N.  Y.  C.  &  H.  R.  E.  E.  Co., 
56  N.  Y.  298;  Hibbard  v.  N.  Y.  &  E.  E.  E.,  15  N.  Y.  470;  Bennett 
V.  N.  Y.  C.  &  H.  E.  E.,  5  Hun,  600;  Downs  v.  N.  Y.  &  N.  H.  E. 
E.,  36  Conn.  287;  C,  B.  &  Q.  E.  E.  v.  Cxriffin,  68  111.  499;  Pullman 
P.  C.  Co.  V.  Eeed,  75  111.  125;  Shelton  v.  Lake  Shore,  etc.  Ey.  Co., 
29  Ohio  St. 

I  am  of  opinion  that  the  judgment  should  be  affirmed  with  costs. 

CooLEY,  C.  J.,  concurred. 

Graves,  J.  By  mistake  the  company's  ticket  agent  issued  and 
plaintiff  accepted  a  ticket  covering  a  shorter  distance  than  that  bar- 
gained and  paid  for;  and  having  ridden  under  it  the  distance  which 


698  CARRIERS  OF  PASSENGERS. 

it  authorized,  and  refusing  to  repay  for  the  space  beyond,  the  plain- 
tiff was  removed  from  the  cars. 

This  removal  may,  or  may  not,  have  constituted  a  cause  of  action, 
but  it  is  not  the  cause  of  action  charged.  The  declaration  sets  up 
that  plaintiff's  ticket  was  a  proper  one  for  the  whole  distance  and 
that  he  was  removed  in  violation  of  the  right  which  the  ticket  made 
known  to  the  conductor. 

There  was  no  proof  of  the  case  alleged,  and  I  agree  therefore  in 
affirming  the  judgment. 

Campbell,  J.  The  plaintiff's  cause  of  action  in  this  case  was  for 
the  failure  of  the  company  to  carry  him  to  a  destination  to  which  he 
had  paid  the  passage-money,  and  the  immediate  occasion  for  his 
removal  from  the  cars  was  that  he  was  given  a  wrong  ticket,  and 
was  not  furnished  with  such  a  one  as  the  conductor  was  instructed 
to  recognize  as  entitling  him  to  the  complete  carriage.  His  declara- 
tion should  have  been  framed  on  this  theory.  Had  it  been  so 
framed,  I  am  not  prepared  to  say  that  he  may  not  have  had  a  right 
of  action  for  more  than  the  difference  in  the  passage-money. 

But  as  he  counted  on  the  failure  of  the  conductor  to  respect  a  cor- 
rect ticket,  and  it  appears  the  conductor  gave  him  all  the  rights 
which  the  ticket  produced  called  for,  there  was  no  cause  of  action 
made  out  under  the  declaration,  and  the  rule  of  damages  need  not  be 
considered.     I  concur  in  aiiirming  the  judgment. 


BILVDSHAW    c.    SOUTH   BOSTON   RAILROAD  COMPANY. 
135  Mass.  407.     1SS3. 

Tort  for  being  expelled  from  one  of  the  defendant's  cars.  Trial 
in  the  Superior  Court  without  a  jury,  before  Colburn,  J.,  who  re- 
ported the  case  for  the  determination  of  this  court,  in  substance  as 
follows :  — 

The  defendant  is  a  common  carrier  of  passengers  for  hire,  owning 
lines  of  street  cars  between  South  Boston  and  Boston  proper,  and, 
among  others,  one  running  over  Federal  Street  Bridge,  between 
Boston  and  City  Point  in  South  Boston  by  what  is  called  the  Bay 
View  route,  and  another  running  over  Dover  Street  Bridge  between 
Boston  and  said  City  I'oint  by  way  of  liroadway.  None  of  the 
Dover  Street  cars  run  over  the  liay  View  route,  and  none  of  the 
Bay  View  cars  run  over  Dover  Street.  When  a  passenger  on 
the  Bay  View  line  wishes  to  enter  the  city  by  way  of  Dover  Street, 
it  is  the  j)raetife  of  the  defendant,  after  he  has  i)aid  his  faro,  and 
arrived  at  the  proper  place  for  ohanging  cars,  to  give  him  a  cliccli, 
which  states  that  it  is  good,  only  on  the  day  of  its  date,  for  one 


KEGULATIONS.  699 

continuous  ride,  for  Bay  View  passengers,  from  Dorchester  Avenue 
to  the  Providence  Depot.  When  a  passenger  on  the  Dover  Street 
line  wishes  to  go  to  some  place  in  South  Boston  on  the  Bay  View 
line,  it  is  the  practice,  after  he  has  paid  his  fare  and  arrived  at  the 
proper  place  for  changing  cars,  for  the  defendant  to  give  him  a 
check,  which  states  that  it  is  good,  only  on  the  day  of  its  date,  for 
one  continuous  ride  from  Dorchester  Avenue  to  City  Point  via  Bay 
View.  The  upper  left  quarter  and  the  lower  right  quarter  of  the 
first-mentioned  checks  are  colored  red,  and  the  corresponding  quar- 
ters of  the  other  checks  are  colored  yellow.  The  plaintiff  was  fa- 
miliar with  the  practice  above  mentioned,  and  had  received  and  used 
such  checks,  but  had  never  read  them,  though  able  to  read,  and  had 
never  noticed  the  difference  in  the  color  of  the  checks. 

In  the  afternoon  of  May  15,  1S81,  the  plaintiff  entered  one  of  the 
Bay  View  cars  of  the  defendant  at  the  corner  of  Eighth  Street  and 
Dorchester  Street  in  South  Boston,  intending  to  go  to  the  corner  of 
Dover  Street  and  Washington  Street  in  Boston,  and  thence  over  the 
Metropolitan  Horse  Eailroad  to  some  point  on  that  line.  He  paid 
his  fare  on  the  defendant  road,  and  also  sufficient  to  pay  for  a  trans- 
fer check  to  the  Metropolitan  road,  which  he  received  in  due  form. 
He  told  the  conductor  that  he  wished  for  a  check  to  take  him  over 
the  Dover  Street  line,  which  the  conductor  promised  to  give  him 
when  they  arrived  at  the  proper  place  for  changing  cars.  At  the 
corner  of  Dorchester  Avenue  and  Broadway  he  left  said  car,  and,  as 
he  left,  the  conductor  handed  him  the  last-named  check,  by  mistake, 
in  place  of  the  first-named.  After  waiting  a  short  time,  a  Dover 
Street  car  came  along,  which  he  entered,  and  rode  as  far  as  the 
bridge,  when  the  conductor  of  the  car  came  for  his  fare,  and  he 
tendered  him  said  check.  The  conductor  refused  to  accept  it, 
(though  the  plaintiff  informed  him  of  the  circumstances  under 
which  he  received  it,  as  above  stated),  and  required  him  to  pay  a 
fare  or  leave  the  car.  The  plaintiff  refused  to  pay  a  fare,  and  was 
forced  by  said  conductor  to  leave  the  car.  No  unnecessary  force 
was  used. 

Upon  these  facts,  the  judge  ruled  that  the  plaintiff  was  not  en- 
titled to  maintain  his  action,  and  found  for  the  defendant. 

W.  Hoivland,  for  the  plaintiff. 

J.  C.  Davis,  for  the  defendant,  cited  Townsend  v.  New  York  Cen- 
tral &  Hudson  Kiver  Railroad,  56  N.  Y.  295  [691];  Weaver  v. 
Rome,  Watertown  &  Ogdensburg  Railroad,  3  Th.  &  C.  270;  Petrie 
V.  Pennsylvania  Railroad,  13  Vroom,  449;  Frederick  v.  Marquette, 
Houghton  &  Ontonagon  Railroad,  37  Mich.  342  [694];  Chicago, 
Burlington  &  Quincy  Railroad  v.  Griffin,  68  111.  499;  Shelton  v. 
Lake  Shore  &  Michigan  Southern  Railway,  29  Ohio  St.  214 ;  Yorton 
V.  Milwaukee,  Lake  Shore  &  Western  Railway,  54  Wis.  234. 

C.  Allen,  J.  It  may  be  assumed,  as  the  view  most  favorable  to 
the  plaintiff,  that  the  defendant  was  bound  by  an  implied  contract 


700  CARRIERS   OF   PASSENGERS. 

to  give  him  a  check  showing  that  he  was  entitled  to  travel  in  the 
second  car,  and  that  it  failed  to  do  so;  in  consequence  of  which  he 
was  forced  to  leave  the  second  car.  It  does  not  appear  that  the 
defendant  had  any  rule  requiring  conductors  to  eject  passengers 
under  such  circumstances.  We  may,  however,  take  notice  of  the 
fact  that  it  is  usual  for  passengers  to  provide  themselves  with  tick- 
ets or  checks,  showing  their  right  to  transportation,  or  else  to  pay 
their  fare  in  money.  It  was  the  practice  for  passengers  on  the  de- 
fendant's road  to  receive  and  use  such  checks;  and  the  plaintiff 
intended  to  conform  to  this  practice. 

The  conductor  of  a  street-railway  car  cannot  reasonably  be  re- 
quired to  take  the  mere  word  of  a  passenger  that  he  is  entitled  to 
be  carried  by  reason  of  having  paid  a  fare  to  the  conductor  of  an- 
other car;  or  even  to  receive  and  decide  upon  the  verbal  statements 
of  others  as  to  the  fact.  The  conductor  has  other  duties  to  perform, 
and  it  would  often  be  impossible  for  him  to  ascertain  and  decide 
upon  the  right  of  the  passenger,  except  in  the  usual,  simple,  and 
direct  way.  The  checks  used  upon  the  defendant's  road  were  trans- 
ferable, and  a  proper  check,  when  given,  might  be  lost  or  stolen,  or 
delivered  to  some  other  person.  It  is  no  great  hardship  upon  the 
passenger  to  put  upon  him  the  duty  of  seeing  to  it,  in  the  first  in- 
stance, that  he  receives  and  presents  to  the  conductor  the  proper 
ticket  or  check;  or,  if  he  fails  to  do  this,  to  leave  him  to  his  remedy 
against  the  company  for  a  breach  of  its  contract.  Otherwise,  the 
conductor  must  investigate  and  determine  the  question,  as  best  he 
can,  while  the  car  is  on  its  passage.  The  circumstances  would  not 
be  favorable  for  a  correct  decision  in  a  doubtful  case.  A  wrong 
decision  in  favor  of  the  passenger  would  usually  leave  the  company 
without  remedy  for  the  fare.  The  passenger  disappears  at  the  end 
of  the  trip;  and,  even  if  it  should  be  ascertained  by  subsequent 
inquiry  that  he  liad  ol)tained  his  passage  fraudulently,  the  legal 
remedy  against  him  would  be  futile.  A  railroad  company  is  not 
expected  to  give  credit  for  the  payment  of  a  single  fare.  A  wrong 
decision,  against  the  passenger,  on  the  other  hand,  would  subject 
the  company  to  liability  in  an  action  at  law,  and  perhaps  with  sub- 
stantial damages.  'J'lie  ])ractical  result  would  be,  either  that  the 
railroad  com[)any  would  find  itself  obliged  in  common  prudence  to 
carry  every  passenger  who  should  claim  a  right  to  ride  in  its  cars, 
and  thus  to  submit  to  frequent  frauds,  or  else,  in  order  to  avoid  this 
wrnng,  to  make  such  stringent  rules  as  greatl}'  to  incommode  the 
]>ublio,  and  deprive  tliem  of  the  facilities  of  transfer  from  one  line 
to  another,  whicli  they  now  enjoy. 

It  is  a  reasonable  ]»ractice  to  require  a  passenger  to  pay  liis  fare, 
or  to  show  a  ticket,  check,  (ir  pass;  and,  in  view  of  the  difficulties 
above  alluded  to,  it  would  be  unrcasonabh?  to  liold  tliat  a  passenger, 
without  sucIj  evidence  of  his  right  to  be  carried,  miglit  forcibly 
retain  his  seat  in  a  car,  upon  liis  mere  statement  tliat  lie  is  entitled 


KEGULATIONS.  701 

to  a  passage.  If  the  company  has  agreed  to  furnish  him  with  a 
proper  ticket,  and  has  failed  to  do  so,  he  is  not  at  liberty  to  assert 
and  maintain  by  force  his  rights  under  that  contract;  but  he  is 
bound  to  yield,  for  the  time  being,  to  the  reasonable  practice  and 
requirements  of  the  company,  and  enforce  his  rights  in  a  more 
appropriate  way.  It  is  easy  to  perceive  that,  in  a  moment  of  irrita- 
tion or  excitement,  it  may  be  unpleasant  to  a  passenger  who  has 
once  paid  to  submit  to  an  additional  exaction.  But,  unless  the  law 
holds  him  to  do  this,  there  arises  at  once  a  conflict  of  rights.  His 
right  to  transportation  is  no  greater  than  the  right  and  duty  of  the 
conductor  to  enforce  reasonable  rules,  and  to  conform  to  reasonable 
and  settled  customs  and  practices,  in  order  to  prevent  the  company 
from  being  defrauded;  and  a  forcible  collision  might  ensue.  The 
two  supposed  rights  are  in  fact  inconsistent  with  each  other.  If  the 
passenger  has  an  absolute  right  to  be  carried,  the  conductor  can 
have  no  right  to  require  the  production  of  a  ticket  or  the  payment 
of  fare.  It  is  more  reasonable  to  hold  that,  for  the  time  being,  the 
passenger  must  bear  the  burden  which  results  from  his  failure  to 
have  a  proper  ticket.  It  follows  that  the  plaintiff  was  where  he 
had  no  right  to  be,  after  his  refusal  to  pay  a  fare,  and  that  he  might 
properly  be  ejected  from  the  car.  This  decision  is  in  accordance 
with  the  principle  of  the  decisions  in  several  other  States,  as  shown 
by  the  cases  cited  for  the  defendant;  and  no  case  has  been  brought 
to  our  attention  holding  the  contrary. 

Judgment  for  the  defendant. 


MURDOCK  V.    BOSTON,  etc.    E.    CO. 
137  Mass.  293.     1884. 

Tort  for  being  expelled  from  a  train  on  the  defendant's  railroad 
at  Pittsfield,  and  for  false  imprisonment  in  the  lockup  of  that  town. 
[The  facts  are  sufficiently  stated  in  the  opinion.] 

The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  $4500; 
and  the  defendant  alleged  exceptions. 

C.  Allen,  J.  It  appears  that  the  defendant's  agent  and  ticket- 
seller  told  the  plaintiff  that  the  two  tickets  would  be  good  for  a  pas- 
sage from  Springfield  to  North  Adams,  and  explained  the  meaning 
of  the  punched  holes,  and,  with  a  full  understanding  of  exactly 
what  the  tickets  were  and  of  what  the  plaintiff'  wanted,  sold  them 
to  him  as  tickets  good  for  his  contemplated  trip.  There  was  noth- 
ing on  their  face  to  show  the  contrary  to  the  plaintiff,  and  he  took 
and  paid  for  them  on  the  strength  of  these  explanations  and  assur- 
ances of  the  ticket-seller.  There  was  no  mistake  on  the  part  of 
either  as  to  where  the  plaintiff  wished  to  go,  or  what  terms  were 


702  CARRIERS   OF   PASSENGERS. 

actually  expressed  upon  the  tickets,  or  what  marks  or  punched  holes 
they  bore.  The  circumstances  of  there  being  two  tickets,  and  of 
the  holes  in  one  of  them,  naturally  induced  inquiry  by  the  plaintiff, 
and  he  had  no  reason  to  distrust  the  correctness  of  the  explanations 
which  were  given  to  him.  The  ticket-seller  assumed  to  know,  and 
gave  assurances  which  the  plaintiff  had  a  right  to  rely  on,  and  which 
he  did  rely  on.  If,  when  the  conductor  refused  to  accept  the 
punched  ticket,  it  had  appeared  on  an  inspection  of  it  that  there 
had  been  a  mistake,  and  that  it  did  not  on  its  face  purport  to  be 
good  for  a  passage  over  that  part  of  the  defendant's  road,  and  that 
the  ticket-seller  had  delivered  to  the  plaintiff  a  good  ticket  upon 
some  other  railroad,  or  to  some  place  which  had  already  been 
passed,  when  the  mistake  was  discovered,  and  it  was  found  that 
the  plaintiff  had  through  inadvertence  accepted  a  ticket  which  on 
its  face  was  plainly  insufficient,  then  this  case  would  have  fallen 
within  the  doctrine  of  the  recent  decision  in  Bradshaw  v.  South 
Boston  Railroad,  135  Mass.  407,  and  it  would  have  been  the  duty 
of  the  plaintiff  to  yield  for  the  time  being,  and  pay  his  fare  anew, 
or  witlidraw  from  the  car,  unless  a  distinction  should  be  taken  be- 
tween the  rights  of  passengers  upon  steam  railways  and  street  rail- 
ways, under  such  circumstances,  —  a  question  which  we  do  not  now 
consider.  See  Cheney  v.  Boston  &  Maine  Railroad,  11  Met.  121; 
Yorton  v.  Milwaukee,  Lake  Shore  &  Western  Railway,  54  Wis. 
234;  Townsond  r.  New  York  Central  >t  Hudson  River  Railroad,  56 
N.  Y.  295  [691];  Tetrie  v.  Pennsylvania  Railroad,  13  Vroom,449; 
Dietrich  v.  Pennsylvania  Railroad,  71  Penn.  St.  432;  Frederick  r. 
Marquette,  Houghton  &  Ontonagon  Railroad,  37  Mich.  342  [694] ; 
McClure  v.  Philadelphia,  Wilmington  &  Baltimore  Railroad,  34 
Md.  .5.32. 

But,  in  the  present  case,  such  is  not  the  position  of  the  parties. 
As  has  been  seen,  the  plaintiff  not  only  was  not  guilty  of  any  negli- 
gence in  accepting  his  ticket,  but  he  examined  it  carefully,  saw 
everything  there  was  on  it,  and  received  explanations  of  the  mean- 
ing of  the  punched  holes,  and  assurances  that  tlie  two  tickets,  in 
the  condition  in  which  they  were,  would  be  good  for  the  trip.  In 
such  a  case,  there  being  no  mistake  or  inadvertence  on  his  part 
in  the  respects  mentioned,  and  the  tickets  which  were  delivered 
bi'ing  in  all  particulars  such  as  were  intended  to  be  delivered,  and 
there  being  nothing  which  could  be  gathered  by  inspection  to  show 
that  they  were  insufKcient,  and  no  notice  of  their  insufficiency  being 
given  to  the  jdaintiff  by  anybody,  or  in  any  form,  until  he  had 
already  entered  upon  and  partially  accomplished  his  journey  over 
tlie  defendant's  road,  lie  might  well  insist  upon  being  allowed  to 
complete  that  journey.  If  the  defendant's  superintendent  or  presi- 
dent, or  V)oth  of  them,  liad  been  standing  by  when  the  plaintiff  pur- 
chased his  tickets,  and  had  heard  and  assented  to  what  was  said  by 
the  tickot-selh-r,  and  if  they  also  were  under  the  same  mistake  as  to 


EEGULATIOXS.  703 

the  rules  established  for  the  guidauce  of  conductors,  the  legal  posi- 
tion of  the  plaintiff  would  hardly  have  been  stronger  than  it  is  at 
present.  It  would  still  be  the  case  that  he  took  his  tickets  relying 
on  the  mistaken  assurances  of  the  defendant's  agent  in  respect  to 
their  validity.  If  the  defendant,  through  any  imperfection  in  its 
rules  or  methods,  or  any  ignorance  or  violation  of  rules  or  in- 
structions by  its  agents,  has  been  led  into  any  interference 
with  the  rights  of  the  plaintiff  under  such  circumstances,  it  must 
abide  the  consequences.  To  hold  the  contrary  would  be  a  burden 
upon  passengers  such  as  is  called  for  by  no  reason  of  necessity  or 
expediency. 

On  the  other  hand,  it  is  no  more  than  a  wholesome  requirement 
that  railway  companies  should  "he  responsible  in  damages  for  the 
consequences  of  a  mishap  such  as  occurred  in  the  present  case.  The 
conductor's  explanation  of  the  meaning  of  the  two  punched  holes 
might  or  might  not  be  correct;  at  any  rate,  their  meaning  was 
purely  arbitrary,  and,  so  far  as  the  plaintiff  could  see,  the  conduc- 
tor's interpretation  was  no  more  probable  or  intelligible  than  that 
given  by  the  ticket-seller.  The  plaintiff  had  a  right  to  act  upon  the 
explanations  given  to  him  at  the  time  when  he  bought  his  ticket. 
The  mistake  was  that  of  the  ticket-seller,  in  supposing  that  the 
punched  holes  signified  that  the  ticket  had  been  used  only  to  Ches- 
ter, whereas  in  fact,  according  to  the  defendant's  rules  for  the  in- 
struction and  guidance  of  conductors,  they  signified  that  it  had  been 
used  to  Pittsfield,  a  station  farther  on.  The  offer  of  the  conductor 
to  give  a  receipt  to  the  plaintiff  for  the  additional  fare  which  he 
demanded,  stating  the  circumstances  under  which  it  was  paid,  so 
that  the  plaintiff  might  get  back  the  money,  if  it  should  be  found 
that  his  account  of  the  purchase  of  the  ticket  was  true,  though 
showing  good  faith  on  the  part  of  the  conductor,  did  not  have  the 
effect  to  make  it  the  legal  duty  of  the  plaintiff  to  pay  the  additional 
fare. 

It  follows  that  all  the  instructions  requested  were  properly  re- 
fused, except  as  modified  by  the  presiding  judge;  and  the  instruc- 
tions which  were  given  were  clearly  and  accurately  expressed. 
Maroney  v.  Old  Colony  &  Newport  Kailway,  106  Mass.  153. 

Exceptions  overruled. 


PHILADELPHIA,    W.    &  B.    E.    CO.    v.   KICE. 

64  Md.  63.     1885. 

EoBiNSON,  J.  The  appellee,  plaintiff  below,  bought  a  round-trip 
ticket  from  Wilmington  to  Philadelphia.  The  ticket  was  in  two 
coupons,  attached  to  each  other,  one  being  for  the  trip  to  Philadel- 


704  CAKFJEKS   OF   PASSENGEKS. 

phia,  and  the  other  for  the  return  trip.  Shortly  after  leaving  Wil- 
mington the  conductor  came  through  for  tickets,  took  the  plaintiff's 
ticket,  tore  off  the  coupon  for  the  trip  to  Philadelphia,  and,  by  mis- 
take, punched  the  return  coupon.  A  few  minutes  after  he  came 
back  and  said  to  plaintili":  ''Let  me  see  that  ticket.  I  think  I  have 
made  a  mistake,"-  He  then  took  the  ticket  which  was  the  return 
coupon  punched  by  him,  and  wrote  on  the  back  of  it  with  a  pencil 
the  words,  "Cancelled  by  mistake,"  and  returned  it  to  the  plaintiff 
saying:  "I  have  fixed  it  all  right.  Now  you  can  ride  on  it."  The 
next  day,  the  plaintiff',  on  the  return  trip  to  Wilmington,  handed  to 
the  conductor  of  that  train  the  punched  coupon,  which,  however,  he 
declined  to  accept,  because  it  had  been  cancelled.  The  plaintiff 
then  called  his  attention  to  the  writing  on  the  back  of  the  ticket, 
and  explained  how  it  had  been  punched  and  the  mistake  corrected 
by  the  conductor  on  the  trip  to  Philadelphia.  But  the  conductor 
declined  to  accept  the  explanation,  saying  to  the  plaintiff:  "Any- 
body could  have  written  that.  You  could  have  done  it  yourself." 
The  mistake,  it  seems,  had  not  been  corrected  according  to  the  rules 
of  the  company,  which  required  the  conductor  making  the  mistake 
to  draw  a  ring  around  the  cancellation  mark,  and  write  on  the  back 
of  the  ticket  the  word  "Error"  and  sign  his  name  or  initials.  The 
conductor  accordingl}^  demanded  of  the  plaintiff  the  fare  from  Phila- 
delphia to  Wilmington,  and,  upon  his  refusal  to  pay  it,  he  Avas  put 
off  the  train.  Upon  these  facts  it  is  admitted  an  action  will  lie 
against  the  company  for  a  breach  of  contract  as  a  carrier,  or  for  the 
negligence  of  the  conductor  in  cancelling  the  plaintiff's  ticket,  and 
thereby  destroying  the  only  evidence  of  his  right  to  the  return  trip; 
but,  inasmuch  as  the  cancellation  had  not  been  corrected  according 
to  the  rules  of  the  company,  the  ejection  of  the  plaintiff,  under  such 
circumstances,  it  is  argued,  does  not  in  itself  furnish  a  substantive 
ground  of  action.  We  shall  not  stop  to  examine  the  several  cases 
relied  on  in  support  of  this  contention.  Hufford  v.  Eailroad  Co., 
18  lieporter,  147;  Frederick  v.  Railroad  Co.,  37  Mich.  342  [694]; 
Yorton  v.  Railway  Co.,  57  Wis.  234;  11  N.  W.  Rep.  482;  Bradshaw 
V.  Railroad  Co.,  135  Mass.  407  [698].  It  is  sufficient  to  say  the 
facts  in  this  case  differ  materially  from  the  facts  in  those  cases. 
Here  the  plaintiff  was  wholly  without  fault.  He  had  purchased  a 
ticket  which  entitled  him  to  a  round  trip  from  Wilmington  to  Pliila- 
delphia.  The  return  coupon  was  cancelled  through  the  mistake  of 
the  conductor.  This  error  he  attempted  to  correct  and  informed  the 
plaintiff  that  it  was  all  right.  The  latter  had  a  right  to  rely  on  this 
as.surance,  and  that  the  ticket  for  which  he  had  paid  his  money  en- 
titled him  to  return  to  Wilmington.  If  the  servants  of  the  ai)pel- 
lant,  under  such  circumstances,  laid  their  liands  forcibly  on  tlie 
person  of  the  plaintiff,  and  compelled  him  to  leave  the  car,  there 
wa.s  not  merely  a  breach  of  contract  on  the  part  of  the  company,  but 
an  unlawful  interference  witli  the  jierson  of  the  ]il;iiiililT,   and  an 


KEGULATIOXS.  705 

indignity  to  his  feelings  for  which  an  action  will  lie,  and  for  which 
he  is  entitled  to  be  compensated  in  damages.  Such  is  the  well-set- 
tled law  of  this  State  and  of  this  country.  The  mistake  by  which 
the  plaintiff's  ticket  was  cancelled  was  the  mistake  of  the  appellant's 
servant,  and  it  must  abide  the  consequences.  There  was  no  error 
therefore  in  the  rulings  of  the  court  in  this  respect. 

But,  in  addition  to  damages  for  the  unlawful  interference  with 
the  person  of  the  plaintiff,  and  the  indignity  to  his  character  and 
feelings,  the  court  also  instructed  the  jury  that,  if  he  was  mali- 
ciously or  wantonly  ejected  from  the  train,  he  was  entitled  to  recover 
exemplary  damages  as  a  punishment  to  the  appellant.  Now,  we 
have  not  been  able  to  find  a  particle  of  evidence  from  which  the  jury 
could  find  that  the  plaintiff  was  wantonly  or  maliciously  ejected 
from  the  car.  The  ticket  which  he  handed  to  the  conductor  Matti- 
son  was  a  cancelled  ticket,  one  which  upon  its  face  showed  it  had 
been  used.  It  had  been  cancelled,  it  is  true,  by  the  mistake  of  an- 
other conductor,  but  this  mistake  had  not  been  corrected  according 
to  the  rules  of  the  company.  Mattison  could  not  therefore  recog- 
nize it  as  a  ticket  entitling  the  plaintiff  to  the  trip  to  Wilmington, 
and,  if  the  latter  refused  to  pay  his  fare  or  to  leave  the  car,  the  con- 
ductor was  obliged  to  eject  him  forcibly.  The  proof  shows  the  con- 
ductor acted  in  good  faith,  and  in  obedience  to  the  rules  of  the 
company,  and  that  no  greater  force  was  used  than  was  actually 
necessary.  No  complaint  is  made  by  the  plaintiff  in  his  testimony 
of  unnecessary  force,  or  that  any  abusive  language  was  used.  The 
brakeman,  he  says,  "  put  his  hand  on  his  shoulder,  and  pulled  him 
across  the  person  who  was  sitting  by  him."  At  first  he  had  made 
up  his  mind  to  resist,  but  upon  the  advice  of  friends  he  concluded 
to  go  out  without  further  resistance.  The  testimony  of  his  friends 
Friedenrich  and  Hobbs  is  to  the  same  effect.  Hobbs  says  the  man- 
ner "  of  the  conductor  and  brakeman  was  firm  and  decided.  They 
looked  angry."  This  is  the  evidence  on  the  part  of  the  plaintiff  to 
support  the  claim  for  punitive  damages,  damages  as  a  punishment 
to  the  appellant  for  having  acted  in  bad  faith,  or  maliciously,  or 
wantonly,  or  in  a  spirit  of  oppression.  The  case,  it  seems  to  us,  is 
wanting  in  every  element  necessary  to  entitle  the  plaintiff  to  vindic- 
tive damages.  Camp,  as  a  passenger  who  saw  and  heard  all  that 
took  place,  says:  "The  conductor  told  the  plaintiff  he  must  have  all 
the  tickets  regular,  and  hoped  he  would  not  think  hard  of  him.  His 
orders  were  imperative  and  he  was  only  doing  his  duty.  The  brake- 
man  put  his  hand  gently  on  plaintiff's  shoulder  and  he  went  out 
without  resistance.  All  the  parties,"  witness  thought,  "acted  like 
gentlemen."  This  case  comes  before  us  a  second  time,  and  we  nat- 
urally feel  some  reluctance  in  sending  it  back  for  another  trial. 
But  as  there  is  no  evidence  from  which  the  jury  could  reasonably 
find  that  the  plaintiff  was  wantonly  or  maliciously  put  off  the  train, 
the  court  erred  in  granting  the  plaintiff's  third  prayer,  by  which  the 

45 


706  CARRIERS  OF  RASSEXGEKS. 

question  of  punitive  damages  was  submitted  to  the  finding  of  the 
jury.     Judgment  reversed,  and  new  trial  awarded. 
BuYAX,  J.,  dissents. 


KAN^^AS   CITY,    ktc.    R.    CO.    v.    RILEY. 
OS  Miss.  7G.3.     1S91. 

Action-  for  damages  against  the  railroad  comi^any  for  ejecting  ap- 
pellee from  a  train.  On  the  trial  of  the  case,  at  the  instance  of 
plaintiff,  the  court  gave  the  following  instructions:  — 

"1,  If  the  jury  believe  from  the  evidence  that  the  plaintiff  pro- 
cured a  round-trip  ticket  from  Myrtle  to  Blue  Springs  and  return, 
and  that  on  her  way  out  to  Blue  Springs,  the  conductor,  Dustin, 
took  from  said  round-trip  ticket  the  return  part  of  said  ticket  and 
left  the  plaintiff  the  out-going  part,  and  plaintiff  did  not  know  this, 
and  that  plaintiff,  in  good  faith,  on  her  return  journey  offered  con- 
ductor Iladaway  the  portion  of  the  ticket  not  taken  from  her,  and 
said  last  conductor  requested  her  to  leave  the  train  or  pay  fare  again 
at  any  rate,  then  this  was  wrongful  on  the  part  of  said  conductor, 
and  defendant  is  liable  in  damages  therefor  to  plaintiff. 

*'2.  The  court  further  charges  the  jury  for  the  plaintiff,  that  the 
law  implies  some  damage  for  the  violation  of  every  legal  right,  the 
amount  to  be  determined  by  the  jury  according  to  tlie  evidence. 

".3.  If  the  jury  believe  from  the  evidence  in  the  case  that  the 
conduct  of  the  conductor  Hadaway  toward  Mrs.  Riley  was  charac- 
terized by  rudeness  and  violence,  or  gross  carelessness  and  wilful 
wrong,  they  may  find  for  the  defendant  punitive  damages  as  a  ])un- 
ishment  to  the  defendant  for  such  conduct,  and  they  are  the  judges 
of  the  proper  amount  according  to  the  law  and  evidence  in  the 
case." 

These  instructions  were  objected  to,  and  the  court  was  asked  to 
instruct  the  jury  to  find  for  defendant.  This  l)oing  refused,  defend- 
ant ajiked  an  instruction  to  the  effect  that  plaintiff  could  only  re- 
cover the  value  of  the  ticket  from  Blue  Springs  to  ISIyrtle,  for  loss 
of  time,  and  such  other  actual  damages  as  she  sustained.  This  was 
refu.sed  as  well  as  other  instructions  asked,  announcing,  in  effect, 
the  converse  of  the  propositions  stated  in  plaintiff's  instructions. 
After  verdict  and  judgment  for  plaintiff,  defendant  made  a  motion 
for  a  new  trial,  which  wa.s  overruled.  The  oijinion  contains  a  fur- 
ther Htatement  of  the  case. 

Cooi-Kit,  J.  On  or  about  tlie  PA  of  Se])tombcr,  ISSO,  tlie  jilain- 
tifT,  with  her  husband,  ]»urchascd  from  the  agent  of  appellant  at 
Myrtle  two  tickets  for  transportation  over  appellant's  road  to  Blue 
•Springs  and  return,  both  places  being  stations  on  appellant's  road. 


REGULATIONS.  707 

These  tickets  were  handed  to  the  conductor  on  the  train  running 
from  Myrtle  to  Blue  Springs,  and  by  accident  and  mistake  he  re- 
turned to  the  passengers  the  wrong  part  of  the  tickets,  giving  to 
them  that  portion  which  called  for  transportation  from  JMyrtle  to 
Blue  Springs,  which  he  should  have  kept,  and  retaining  that  por- 
tion calling  for  passage  from  Blue  Springs  to  Myrtle,  which  he 
should  have  returned  to  the  passengers.  The  plaintiff  went  from 
Blue  Springs  to  Sherman,  another  station  on  appellant's  road,  and, 
on  the  6th  of  September,  being  desirous  of  returning  to  Myrtle,  she 
purchased  a  ticket  from  Sherman  to  Blue  Springs,  and  for  the  jour- 
ney from  that  place  to  Myrtle  tendered  that  portion  of  the  round- 
trip  ticket  from  Myrtle  to  Blue  Springs  that  had  been  returned  to 
her  by  the  conductor  on  the  3d,  but  this  ticket  the  conductor  refused 
to  accept,  because  it  entitled  the  bearer  to  transportation  from  Myr- 
tle to  Blue  Springs,  and  not  from  Blue  Springs  to  Myrtle. 

The  plaintiff  had  not  before  noticed  the  mistake  that  had  been 
made  by  the  other  conductor,  but  then  explained  to  the  conductor 
of  the  train  upon  which  she  was  travelling  how  it  had  occurred,  and 
insisted  upon  her  right  to  be  carried  on  the  ticket.  But  this  he  de- 
clined, and  informed  the  plaintiff  that  she  must  either  pay  train 
fare,  buy  a  ticket  at  Blue  Springs  when  the  train  should  reach  that 
point,  or  leave  the  train  there.  The  plaintiff  and  the  conductor  tes- 
tified to  about  the  same  facts  as  to  what  transpired  until  the  train 
reached  Blue  Springs,  at  which  point,  as  the  conductor  stated,  the 
plaintiff  and  her  husband  left  the  train  upon  his  refusal  to  carry 
them  on  the  tickets  they  then  had,  while  the  plaintiff  testified  that 
the  conductor  spoke  to  her  in  an  angry  manner,  and  took  her  by  the 
arm  to  put  her  off  the  train. 

At  all  events,  the  plaintiff  left  the  train  at  Blue  Springs  with  her 
husband  and  there  remained  until  the  following  day,  and  brings  this 
suit  for  damages  against  the  appellant.  The  jury  awarded  her  dam- 
ages in  the  sum  of  $300,  and,  from  a  judgment  for  that  sum,  the 
defendant  appeals. 

The  decisions  are  in  direct  and  palpable  conflict  upon  the  liability 
of  a  common  carrier  for  failure  to  transport  a  passenger  under  the 
circumstances  named.  In  ISTew  York,  Michigan,  Illinois,  Mary- 
land, Ohio,  Wisconsin,  Connecticut,  New  Jersey,  Massachusetts, 
and  North  Carolina  it  seems  to  have  been  decided  that  the  ticket 
presented  by  the  passenger  is  the  only  evidence  of  his  right  to  travel 
upon  the  train  which  can  be  recognized  by  the  conductor,  and  that 
if  by  reason  of  the  negligence  of  other  servants  of  the  carrier,  a 
wrong  ticket  has  been  given  to  the  passenger,  or  the  right  ticket  has 
been  given  to  him,  but  erroneously  taken  from  him,  the  passenger's 
right  of  action  is  for  the  wrong  thus  committed,  and  that  he  may 
not  insist  upon  his  right  to  travel  on  the  wrong  ticket  or  without  it, 
when  it  has  been  taken  up,  and  recover  damages  for  the  refusal  of 
the  carrier  to  permit  him  to  do  so,  and  that  the  carrier  may  law- 


708  CARRIERS   OF   PASSENGERS. 

fully  eject  him  from  its  train,  using  no  more  force  than  is  necessary 
for  that  purpose. 

The  authorities  in  support  of  this  rule  are  found  in  the  brief  of 
counsel  for  appellant.  Un  the  other  hand,  it  is  held  in  Georgia  and 
Indiana,  that  the  passenger  is  entitled  to  travel  according  to  his  real 
contract  with  the  carrier,  where  the  mistake  in  giving  the  proper 
ticket  or  in  taking  up  a  proper  one  held  by  the  passenger  is  caused 
by  the  negligence  of  the  servants  of  the  carrier.  R.  R.  Co.  v.  Fixe, 
11  Am.  &  Eng.  Ry.  Cas.  108. 

In  a  more  recent  case  in  Michigan  than  those  cited  by  appellant's 
counsel,  Hufford  v.  Railroad  Co.,  64  Mich.  634,  the  plaintiff  had 
applied  and  paid  for  a  ticket  from  ^lanton  to  Traverse  City.  The 
agent  gave  him  a  ticket  previously  issued  for  a  ride  from  Sturgis  to 
Traverse  City.  There  was  evidence  tending  to  show  that  the  ticket 
had  been  cancelled  by  conductor's  marks  for  a  ride  between  Sturgis 
and  Walton,  and  the  trial  court  instructed  the  jury  that  "if  they 
believed  the  ticket  was  punched,  indicating  to  the  conductor  by  the 
punch-mark  that  it  had  been  used  before  between  Grand  Rapids  and 
Walton,  that  would  be  evidence  of  an  infirmity  in  the  ticket,  and 
the  plaintiff  would  not  be  entitled  to  insist  upon  that  ticket  being 
received."  This  instruction  was  held  to  be  erroneous,  the  court 
saying:  ''When  the  plaintiff  told  the  conductor  on  the  train  that  he 
had  paid  his  fare,  and  stated  the  amount  he  had  paid  to  the  agent 
who  gave  him  the  ticket  he  presented,  and  told  him  it  was  good,  it 
was  the  duty  of  the  conductor  to  accept  the  statement  of  the  plain- 
tiff until  he  found  out  it  was  not  true,  no  matter  what  the  ticket 
contained  in  words,  figures,  or  other  marks." 

The  most  remarkable  thing  about  this  decision  is,  that  it  was 
made  in  the  same  case  upon  the  same  facts  and  between  the  same 
parties  as  that  reported  in  53  Mich.  118,  in  which,  in  an  opinion 
delivered  by  Judge  Cooley,  it  was  held  that,  as  between  the  conduc- 
tor and  the  passenger,  "the  ticket  must  be  conclusive  evidence  of 
the  extent  of  the  passenger's  right  to  travel." 

There  is  a  class  of  cases  somewhat  analogous  to  the  present  one, 
in  which,  by  a  uniform  course  of  decisions  so  far  as  we  are  informed, 
it  is  held  that  the  conductor  must  accept  the  statements  of  the  pas- 
senger. We  refer  to  those  cases  in  which  different  rates  are  charged 
for  one  wlio  Ims  procured  a  ticket  and  one  who  pays  upon  the  train. 
It  is  held  that,  as  a  condition  precedent  to  the  exercise  of  tliis  right 
to  charge  higher  train-rates,  and  to  ex\>e\  one  refusing  to  pay  them, 
a  reaaonaVile  ojiportunity  must  be  given  by  the  carrier  to  the  pas- 
8enj,'**r  to  j»rocure  the  ticket  required,  and  that  one  to  whom  no  such 
fiT: ..rtunity  has  bf>en  afforded,  and  who  for  refusing  to  pay  the 
r  rate  is  expelled  from  the  train,  may  recover  damages  there- 
"••*  hinson  on  Carriers,  §  o?!,  and  autliorities  in  nf)tc  2;  For- 
road  Co.,  03  Miss.  06. 

W;iiiout  determining  more  ujion   this  disputed  question  tlian  is 


REGULATIONS.  "09 

necessary  for  the  decision  of  the  case  before  us,  it  is  sufficient  to 
say  that  where,  as  here,  the  ticket  in  the  hands  of  the  passenger 
supports  and  confirms  the  truth  of  his  statement,  and  no  possible 
injury  can  result  to  the  carrier  by  the  conductor's  accepting  and  act- 
ing thereon,  he  must  so  act,  or  refuse,  at  the  peril  of  inviting  an 
action  for  damages  against  his  principal  if  the  statement  be  true. 

We  do  not  decide  that  a  person  holding  a  ticket  from  Myrtle  to 
Blue  Springs  has  a  right  to  ride  from  Blue  Springs  to  Myrtle,  but 
no  real  injury  could  result  to  the  carrier  in  recognizing  such  right, 
for  the  distance  is  the  same,  and  in  the  usual  course  of  business  as 
many  trains  pass  in  one  direction  as  the  other.  What  we  do  decide 
is,  that  a  passenger  holding  and  attempting  to  use  such  ticket  under 
the  circumstances  disclosed  in  this  record,  and  explaining  to  the 
conductor  how  the  mistake  occurred  by  which  the  ticket  read  in  the 
wrong  direction,  makes  such  a  reasonable  and  probable  showing  as 
entitles  him  to  be  dealt  with  as  a  passenger,  and  therefore  that  any 
regulation  of  the  carrier  authorizing  the  conductor  of  its  trains  to 
disregard  such  statement  is  unreasonable,  and  need  not  be  submitted 
to  by  the  passenger. 

We  find  no  error  in  the  record  for  which  the  judgment  should  be 

reversed,  and  it  is 

Affirmed. 


SWAN   V.   MANCHESTEE,    etc.    R. 
132  Mass.  116.     1882. 

Tort  in  two  counts.  The  first  count  was  for  expelling  the  plain- 
titt"  from  the  defendant's  cars  at  Windham,  in  the  State  of  New 
Hampshire.  The  second  count  was  for  refusing  to  sell  the  plaintiff 
a  ticket  entitling  him  to  be  carried  over  the  defendant's  railroad 
from  said  Windham  to  Lawrence,  in  this  Commonwealth.  The  case 
was  submitted  to  the  Superior  Court,  and,  after  judgment  for  the 
defendant,  to  this  court  on  appeal,  upon  agreed  facts,  the  material 
parts  of  which  appear  in  the  opinion. 

Devens,  J.  The  regulation  that  all  passengers,  who  shall  pur- 
chase tickets  before  entering  the  cars  of  a  railroad  company  to  be 
transported  therein,  shall  be  entitled  to  a  small  discount  from  the 
advertised  rates  of  fare,  but,  if  such  ticket  is  not  purchased,  the  full 
rate  of  fare  shall  be  charged,  is  a  reasonable  one,  and  in  no  way 
violates  the  rule,  which  in  New  Hampshire  has  the  sanction  of  the 
statute  law,  that  the  rates  shall  be  the  same  for  all  persons  between 
the  same  points.  Commonwealth  v.  Power,  7  Met.  596;  Johnson 
V.  Concord  Railroad,  46  N.  H.  213;  St.  Louis,  Alton  &  Terre 
Haute  Railroad  v.  South,  4.3  111.  176;  Illinois  Central  Railroads. 
Johnson,  67  111.  312;   Indianapolis,  Peru  &   Chicago   Railroad  v. 


710  CAKRIEKS  OF  PASSENGERS. 

Rinarcl,  4G  Ind.  293;  Du  Laurans  v.  St.  Paul  &  Pacific  Eailroad, 
15  Minn.  49. 

The  number  of  persons  carried,  the  rapidity  with  which  the  cars 
move,  the  frequency  and  shortness  of  their  stops,  the  delay  and  in- 
convenience of  making  change,  the  various  details  to  be  attended  to 
by  the  conductor  \yhile  the  train  is  in  motion  or  at  the  stations,  and 
the  importance  to  the  railroad  company  of  conducting  its  business 
at  fixed  places,  render  the  mode  of  payment  by  tickets  previously 
purchased  one  of  advantage  to  the  railroad  company  and  of  conveni- 
ence to  the  public.  A  passenger  who  is  without  a  ticket  and  de- 
clines to  pay  full  fare  may  ordinarily  be  ejected  from  a  train  at  a 
station,  as  one  may  who  absolutely  refuses  to  pay  his  fare.  State  v. 
Goold,  53  Maine,  279;  Stephen  v.  Smith,  29  Vt.  160;  Hilliard  v. 
Goold,  34  N.  H.  230,  and  cases  above  cited. 

These  positions  are  not  controverted  by  the  plaintiff,  who  main- 
tains that,  although  he  had  no  ticket,  he  was  entitled  to  be  carried 
for  the  price  of  one,  in  view  of  his  failure  to  procure  one  under  the 
circumstances  hereafter  stated.  The  table  of  prices  advertised  by 
the  defendant  authorized  the  ticket-seller  to  make  a  discount  of  fif- 
teen cents,  had  the  plaintiff  purchased  one  for  the  journey  he  pro- 
posed to  make  from  Derry  to  Lawrence,  the  advertised  fare  being 
sixty-five  cents.  Until  the  time  advertised  for  the  departure  of  the 
train  from  Derry  had  expired,  the  ticket-seller  had  been  in  his  oflBce. 
He  left  it  after  that  time,  and  while  the  train  was  approaching,  in 
order  to  aid  the  station  agent,  as  he  was  accustomed  to  do,  in  load- 
ing the  baggage  upon  the  passenger  trains.  "While  the  plaintiff  did 
not  approach  the  ticket-office  to  find  it  vacant  and  the  ticket-seller 
absent  until  after  the  time  had  expired  for  the  departure  of  the  train 
as  advertised,  there  was  sufficient  time  for  him  to  have  procured  his 
ticket  before  the  train  actually  started  from  the  station,  if  the 
ticket-seller  had  then  been  in  the  office.  He  entered  the  train  with- 
out a  ticket,  and  the  conductor,  acting  according  to  the  rules  of  the 
company,  demanded  the  full  price  for  the  fare,  sixty-five  cents, 
which  the  plaintiff  refused  to  pay,  insisting  upon  his  right  to  be 
carried  for  fifty  cents,  the  price  of  a  ticket,  wliich  he  tendered,  but 
which  the  conductor  refused,  telling  the  plaintiff  he  must  leave  the 
train  at  the  next  station,  unless  tlie  demand  for  full  fare  was  com- 
plied with.  On  the  arrival  of  the  train  at  the  next  station,  the 
plaintiff,  failing  to  comply  with  the  demand  of  the  conductor,  was 
ordered  by  him  to  leave  tlie  train,  which  he  did. 

Upon  this  part  of  his  case,  the  plaintiff  contends  that,  inasmuch 
as  he  went  to  the  office  to  procure  a  ticket,  and  was  unable  so  to  do, 
as  above  stated,  he  was  entitled  to  be  carried  for  the  jirice  of  a 
ticket,  wliicli  1»(!  tendered,  and  that  his  exclusion  from  the  train  was 
thepffore  unjustifiable. 

It  has  been  lield  in  a  few  cases  that  the  offer  to  carry  passengers 
at  a  less  rate  if  tickets  were  procured,  was  in  tlie  nature  of  a  pro- 


REGULATIONS.  711 

posal,  like  ofher  proposals  to  enter  into  a  contract,  dependent  for  its 
acceptance  upon  the  compliance  with  its  condition ;  that  it  might  be 
withdrawn  at  any  time;  that  closing  the  office  for  the  sale  of  tickets 
was  such  withdrawal ;  and  that  the  offer  carried  with  it  no  obliga- 
tion on  the  part  of  the  company  to  open  an  office,  or  to  keep  such 
office  open  for  any  length  of  time,  it  being  merely  an  offer  to  make 
the  deduction  if  the  ticket  should  be  procured.  Crocker  v.  Xew 
London,  Willimantic  &  Palmer  Eailroad,  24  Conn.  249;  Bordeaux 
V.  Erie  Railway,  8  Hun,  579. 

In  a  much  larger  number  of  cases,  and  with  much  better  reason, 
it  has  been  held  that  where  the  railroad  undertakes  to  conduct  its 
business  by  means  of  tickets,  whether  it  requires,  as  it  may,  the 
possession  of  a  ticket  as  a  prerequisite  to  entering  its  cars,  or 
whether  it  offers  a  deduction  from  the  regular  or  advertised  rate 
to  one  who  shall  procure  a  ticket  in  advance,  it  is  a  part  of  its  duty 
to  afford  a  reasonable  opportunity  to  obtain  its  tickets.  St.  Louis, 
Alton  &  Terre  Haute  Eailroad  v.  South,  nhi  supra ;  Chicago  & 
Alton  Eailroad  v.  Flagg,  43  111.  364;  Jeffersonville  Eailroad  v. 
Eogers,  28  Ind.  1;  Indianapolis,  Peru  &  Chicago  Eailroad  v. 
Einard,  uhi  supra ;  Du  Laurans  v.  St.  Paul  &  Pacific  Eailroad,  ubi 
sup)ra. 

Adopting  on  this  part  of  the  case  the  rule  most  favorable  to  the 
plaintiff,  he  was  afforded  a  fair  and  reasonable  opportunity  to  obtain 
a  ticket.  Delays  must  necessarily  from  time  to  time  arise  in  the 
progress  of  a  train  from  a  variety  of  incidental  circumstances,  but 
at  the  stations  everything  may  be  definitely  arranged  with  reference 
to  the  time  when  by  the  schedule  the  train  is  to  depart.  A  traveller 
should  be  at  the  station  sufficiently  early  to  make  the  ordinary  pre- 
paration for  his  journey  according  to  this,  and  has  a  right  to  expect 
that  other  matters  in  which  he  is  interested  will  be  accommodated 
to  the  schedule  arranged;  that  suitable  persons  will  then  be  at  the 
station  to  take  charge  of  his  baggage  and  to  provide  him  with  a 
ticket.  The  plaintiff  had  a  reasonable  opportunity  to  procure  a 
ticket,  if  for  a  time  sufficient  to  attend  to  the  business,  and  up  to 
the  time  when  the  train  was  advertised  to  depart,  the  ticket-office 
was  open  and  there  was  a  proper  person  in  attendance.  The  delay 
of  the  train  did  not  enlarge  his  rights,  nor  could  it  entitle  him  to 
insist  that  at  the  station  whence  he  was  to  start  the  office  of  the 
ticket-seller  should  not  be  closed  until  its  arrival.  Trains  may  be 
delayed  for  hours,  especially  during  the  storms  of  winter,  from 
causes  which  cannot  be  controlled.  The  ticket-sellers,  especially  at 
the  numerous  small  stations,  must  have  imposed  upon  them  various 
other  duties;  and  it  would  not  be  a  reasonable  rule  that  should  com- 
pel them  to  be  at  their  posts  sometimes  for  hours  after  the  time 
when  everything  at  the  station  should  have  been  arranged  for  the 
departure.  St.  Louis,  Alton  &  Terre  Haute  Eailroad  v.  South,  uli 
supra. 


71*2  CARRIERS   OF   PASSENGERS. 

The  cases  of  Porter  v.  Xew  York  Central  Railroad,  34  Barb.  353, 
Xellis  V.  Xew  York  Central  Eailroad,  30  X.  Y.  505,  and  Chase  v. 
Xew  York  Central  Eailroad,  26  X.  Y.  523,  all  depend  upon  a  stat- 
ute of  Xew  York  applicable  to  the  New  York  Central  Eailroad  Com- 
pany alone,  which  requires  it,  at  every  station  on  its  road  where 
there  is  a  ticket-office,  to  keep  the  same  open  "at  least  one  hour 
prior  to  the  departure  of  each  passenger  train  from  such  station." 
This  has  been  held  to  mean  its  actual  departure,  and  that  road  is 
necessarily  governed  by  this  positive  provision  of  law. 

The  plaintitf,  having  no  right  to  insist  on  being  carried  for  the 
price  of  a  ticket,  and  declining  to  pay  the  regular  fare,  was  properly 
expelled  from  the  train  on  its  arrival  at  Windham,  one  of  the  sta- 
tions on  the  road. 

While  the  train  stopped  at  Windham,  and  after  the  plaintiff's 
expulsion  therefrom,  he  applied  to  the  ticket-seller  for  a  ticket  from 
Windham  to  Lawrence,  tendered  him  the  money  therefor,  which  the 
ticket-seller  accepted,  but,  upon  being  informed  of  the  fact  by  the 
conductor  that  the  plaintiff  had  taken  passage  at  Derry,  and  re- 
quested not  to  sell  him  a  ticket,  declined  so  to  do,  and  tendered  to  the 
plaintiff  his  money,  which  the  plaintiff  declined  to  receive,  at  the 
same  time  stating  "that  he  wished  to  go  on  that  train."  Under 
the  direction  of  the  condactor,  the  train  started,  leaving  the  plain- 
tiff at  the  station,  and  he  proceeded  thence  to  Lawrence  by  carriage, 
a  distance  of  twelve  miles,  there  not  being  another  train  until  five 
hours  later.  / 

If  his  original  expulsion  from  the  train  were  lawful,  the  plaintiff 
contends,  on  these  facts,  that  the  railroad  company  has  no  justifica- 
tion for  refusing  thereafter  to  transport  him  to  Lawrence.  The 
plaintiff  did  not  seek  to  purchase  a  ticket  from  Windham,  or  offer 
the  money  therefor,  except  to  prosecute  his  journey  to  Lawrence  by 
the  same  train,  which  he  had  entered  at  Derry,  and  from  which  he 
had  been  rightfully  expelled.  Because  tickets  are  sold  from  Wind- 
ham to  Lawrence,  he  contends  that  he  desired  to  make  a  new  con- 
tract at  the  regular  price  from  that  point,  which  the  defendant,  as 
a  common  carrier  of  passengers,  had  no  right  to  refuse.  Whatever 
might  be  his  rights,  if  he  had  sought  to  purchase  a  ticket  for  or  go 
by  a  subsequent  train  from  Windham,  he  sought  to  continue  a  trans- 
action which  had  begun  by  his  entering  the  cars  at  Derry  to  go  to 
Lawrence,  when  lie  had  thus  impliedly  contracted  to  pay  the  regular 
fare  for  that  journey,  which  included  the  distance  from  Windham. 
He  was  not  in  the  situation  of  a  passenger  whose  journey  was  to 
commence  at  Windham;  he  had  already  been  brought  from  Derry, 
and  the  claim  that  he  sliould  have  been  carried  by  the  same  train 
from  Windham,  on  paying  from  that  point,  was  a  claim  that  he 
mit;ht  renew  tlie  same  contract  lie  had  already  broken,  by  paying 
for  the  distance  over  which  the  journey  was  yet  to  be  prosecuted. 
wiiile  }j(;   iiiadf   no  payment   for  tlie  distance  over   wliidi    he    1i:h1 


REGULATIONS.  713 

already  been  transported.  While  the  journey  which  he  had  begun 
and  for  which  he  had  contracted  to  pay  continued,  he  could  not  at 
his  pleasure  break  it  into  two  separate  transactions.  That  which 
he  sought  to  make  had  been  included  in  his  original  contract,  and 
the  defendant  was  not  obliged  to  re-admit  him  to  the  same  train, 
from  which  his  expulsion  had  been  proper,  so  long  at  least  as  he 
persisted  in  his  violation  of  the  contract  he  had  originally  made. 

In  O'Brien  v.  Boston  &  Worcester  Railroad,  15  Gray,  20,  it  was 
held  that  a  person,  who  had  been  properly  ejected  for  non-payment 
of  fare  at  a  place  where  there  was  no  station,  could  not,  by  again 
entering  the  cars  and  tendering  the  fare,  obtain  the  right  to  be  car- 
ried by  them. 

If  this  case  is  distinguishable,  as  the  plaintiff  suggests,  by  the 
fact  that  the  expulsion  there  was  not  at  a  station,  and  the  re-entry 
into  the  cars  was  at  a  place  where  the  company  was  not  bound  to 
receive  passengers,  it  is  also  distinguishable,  and  in  this  matter  not 
in  favor  of  the  plaintiff,  by  the  fact  that  the  person  there  expelled 
offered  to  pay  the  entire  fare  for  the  journey  which  he  had  begun. 

If  the  rightful  expulsion  takes  place  at  a  station,  it  is  not  an 
unreasonable  rule  that  the  person  expelled  should  pay  the  fare  over 
the  distance  already  travelled  before  he  can  purchase  a  ticket  from 
such  station  for  the  remainder  of  the  journey  which  will  entitle  him 
to  be  carried  on  the  same  train.  This  point  was  directly  adjudged 
in  Stone  v.  Chicago  &  Northwestern  Railroad,  47  Iowa,  82,  and 
in  O'Brien  v.  New  York  Central  &  Hudson  River  Railroad,  80 
N.  Y.  236. 

The  case  of  State  v.  Campbell,  3  Vroom,  309,  goes  further  than 
we  are  required  to  do  in  the  present  inquiry.  The  traveller  there 
had  an  excursion  ticket  from  New  Brunswick  to  New  York,  good 
for  a  single  day,  which  had  passed,  and  the  ticket  was  thus  ex- 
hausted. He  had  also  a  regular  ticket,  which  then  entitled  him  to 
a  passage  between  the  same  points.  The  latter  ticket  he  kept  in  his 
pocket,  refused  to  exhibit  any  other  than  the  exhausted  ticket,  and 
was  ejected  from  the  cars,  at  Newark,  a  station  on  the  road.  He 
then  exhibited  the  regular  ticket,  which  would  have  entitled  him  to 
the  passage  if  previously  shown,  and  claimed  to  re-enter  the  cars. 
His  previous  conduct  was  held  to  fully  justify  his  exclusion  from 
the  same  train. 

The  only  other  case  cited  by  the  plaintiff  which  requires  notice  is 
Nelson  v.  Long  Island  Railroad,  7  Hun,  140.  It  was  there  held 
that  a  passenger  put  off  the  car  for  refusing  to  pay  his  fare  cannot 
be  taken  back  upon  complying  with  the  rule  violated,  unless  he  be 
at  a  regular  station,  and  then  and  there  obtain  a  ticket,  or  tender 
his  fare.  An  examination  of  the  case  will  show  that  the  obtaining 
of  a  ticket,  or  tendering  the  fare  referred  to,  is  a  ticket  or  fare  for 
the  whole  distance  travelled  and  to  be  travelled,  and  not  for  the 
remainder  of  the  proposed  journey.  Judgment  affirmed. 


714  CARRIERS   OF   PASSENGERS. 

ILLINOIS   CENTRAL   K.    CO.    c.    WHITTEMORE. 
43  111.  420.     1S67. 

Lawkexce,  J.  This  was  an  action  of  trespass  brought  by  Whit- 
temore  against  the  Illinois  Central  Railroad  Company  and  N.  W. 
Cole,  a  conductor  in  the  service  of  the  company,  for  -wrongfully 
expelling  the  plaintiff  from  a  train.  It  appears  the  plaintiff  had 
taken  passage  from  Decatur  to  El  Paso,  and  had  procured  the  neces- 
sary ticket.  After  the  train  passed  Kappa,  the  station  preceding 
El  Paso,  the  conductor  demanded  the  plaintiff's  ticket,  which  the 
latter  refused  to  surrender  without  a  check.  This  the  conductor 
refused  to  give;  and  after  some  controversy  with  the  plaintiff, 
stopped  the  train,  and  with  the  aid  of  a  brakeman  expelled  the 
plaintiff.  There  is  considerable  evidence  in  the  record  given  for 
the  purpose  of  showing  that,  even  admitting  the  right  of  the  defend- 
ants to  expel  the  plaintiff,  an  unnecessary  and  wanton  degree  of  vio- 
lence was  used  from  which  the  plaintiff  received  a  permanent  and 
severe  injury.  As,  however,  the  case  must  be  submitted  to  another 
jury,  we  forbear  from  any  comments  on  this  portion  of  it.  The  jury 
gave  the  plaintiff  a  verdict  for  §3, 12.5,  for  which  the  court  rendered 
judgment,  and  the  defendants  appealed. 

In  sustaining  a  demurrer  to  the  fourth  plea,  and  in  giving  the 
instructions,  the  Circuit  Court  held  that,  although  the  rules  of  the 
road  required  the  conductor  to  take  up  the  plaintiff's  ticket,  and 
notwithstanding  he  may  have  refused  to  surrender  it  when  de- 
manded, the  defendants  had  no  right  to  expel  him  from  the  cars, 
except  at  a  regular  station.  In  support  of  this  position,  it  is  urged 
by  counsel  for  appellee  that  the  refusal  to  surrender  the  ticket  was 
merely  equivalent  to  a  refusal  to  pay  the  fare,  and  that  the  statu- 
tory prohibition  against  the  expulsion  of  passengers  for  this  cause, 
except  at  a  regular  station,  should  be  applied  to  cases  like  the  pres- 
ent. We  held,  in  the  case  of  Chicago  &  Atlantic  R.  R.  v.  Flagg, 
43  111.  .304,  that  tlie  neglect  to  buy  a  ticket  before  entering  the 
train,  wlien  required  by  the  rules  of  the  road,  was  tlie  same  thing 
in  substance  as  the  refusal  to  pay  the  fare,  and  justified  an  expul- 
sion only  at  a  regular  station.  But  the  refusal  to  surrender  a 
ticket  for  which  the  requisite  fare  has  already  been  paid  is  cer- 
tainly not  the  same  tiling  as  refusal  to  pay  tlie  faro.  It  may  be  no 
worse  offence  against  the  riglits  of  the  railroad  company  than  tlie 
refusal  to  piay  tlie  fare,  but  it  is  not  the  same  offence.  Perhaps 
there  was  no  good  reason  why  the  legislature  should  liavo  forbidden 
railway.^  to  expel  a  i)assengcr  only  at  a  regular  station  for  the  non- 
payment of  fare,  and  have  h*ft  them  at  liberty  to  expel  one  at  any 
other  point,  for  the  disregard  of  any  other  reasonable  rule     15ut  it 


REGULATIOXS.  715 

has  done  so,  and  it  is  our  duty  to  leave  the  law  as  the  legislature 
thought  proper  to  establish  it. 

What,  then,  is  the  right  of  a  rail  u' ay  company  in  reference  to  its 
passengers  ?  Clearly,  to  require  of  them  the  observance  of  all  such 
reasonable  rules  as  tend  to  promote  the  comfort  and  convenience  of 
the  passengers,  to  preserve  good  order  and  propriety  of  behavior,  to 
secure  the  safety  of  the  train,  and  to  enable  the  company  to  conduct 
its  business  as  a  common  carrier  with  advantage  to  the  public  and 
to  itself.  So  long  as  such  reasonable  rules  are  observed  by  a  pas- 
senger, the  company  is  bound  to  carry  him  •,  but  if  they  are  wantonly 
disregarded,  that  obligation  ceases,  and  the  company  may  at  once 
expel  him  from  the  train,  using  no  moie  force  than  may  be  neces- 
sary for  that  purpose,  and  not  selecting  a  dangerous  or  inconvenient 
place.  This  is  a  common-law  right,  arising  from  the  nature  of  their 
contract  and  occupation  as  common  carriers,  and,  as  already  re- 
marked, it  has  been  restricted  by  the  legislature  only  in  cases  where 
the  offence  consists  in  non-payment  of  fare.  Ch.,  B.  &  Q.  R.  E, 
Co.  V.  Parks,  18  111.  460;  Hilliard  v.  Gould,  34  N.  H.  230;  Cheney 
V,  Boston  &  Maine  R.  R.  Co.,  11  Mete.  121.  If,  then,  the  regula- 
tion requiring  passengers  to  surrender  their  tickets  was  a  reason- 
able one,  the  ruling  of  the  court  below  on  this  point  was  erroneous. 

That  the  rule  is  a  reasonable  one  really  admits  of  no  controversy. 
It  was  shown  by  witnesses  on  the  trial,  and  must  be  apparent  to  any 
one,  that  the  company  must  have  the  right  to  require  the  surrender 
of  tickets,  in  order  to  guard  itself  against  imposition  and  fraud,  and 
to  preserve  the  requisite  method  and  accuracy  in  the  management  of 
its  passenger  department. 

The  Circuit  Court  left  it  to  the  jury  to  say  whether  the  rule  was 
reasonable.  This  was  error.  It  was  proper  to  admit  testimony,  as 
was  done,  but,  either  with  or  without  this  testimony,  it  was  for  the 
court  to  say  whether  the  regulation  was  reasonable,  and,  therefore, 
obligatory  upon  the  passengers.  The  necessit}^  of  holding  this  to  be 
a  question  of  law,  and,  therefore,  within  the  province  of  the  court 
to  settle,  is  apparent  from  the  consideration,  that  it  is  only  by  so 
holding,  that  fixed  and  permanent  regulations  can  be  established. 
If  this  question  is  to  be  left  to  juries,  one  rule  would  be  applied  by 
them  to-day  and  another  to-morrow.  In  one  trial  a  railway  would 
be  held  liable,  and  in  another,  presenting  the  same  question,  not  lia- 
ble. Neither  the  companies  nor  passengers  would  know  their  rights 
or  their  obligations.  A  fixed  system  for  the  control  of  the  vast 
interests  connected  with  railways  would  be  impossible,  while  such 
a  system  is  essential  equally  to  the  roads  and  to  the  public.  A 
similar  view  has  recently  been  taken  of  this  question  in  the  case  of 
Vedder  v.  Fellows,  20  N.  Y.  126. 

The  judgment  must  be  reversed;  but  if  it  appears,  upon  another 
trial,  that  unnecessary  violence  was  used,  the  defendants  must  re- 
spond in  damages. 


716  CAKKIERS    OF    PASSENGERS. 


CHICAGO,  ETC.    K.    CO.    v.    WILLIAMS. 
55  III.  185.     1370. 

Appeal  from  the  Circuit  Court  of  Wiuuebago  County;  the  Hon. 
Bexjamix  R.  Sheldox,  Judge,  presiding. 

This  was  an  action  on  the  case,  brought  in  the  court  below  by 
Anna  Williams,  a  colored  Avomau,  against  the  Chicago  &  North- 
western Railway  Company,  to  recover  damages  resulting  to  the 
plaintiff  by  reason  of  being  excluded  from  the  privileges  of  a  car 
upon  the  defendants'  road,  which  had  been  designated,  under  the 
rules  of  the  company,  for  the  exclusive  use  of  ladies,  and  gentle- 
men accompanied  by  ladies,  the  only  reason  for  such  exclusion  of 
the  plaintitf  being  on  account  of  her  color. 

Upon  the  trial,  the  plaintiff  recovered  a  judgment  for  $200,  from 
which  the  company  appealed. 

Mr.  Justice  Scott.  There  is  but  one  question  of  any  consider- 
able importance  presented  by  the  record  in  this  case. 

It  is  simply,  whether  a  railroad  company,  which,  by  our  statute, 
and  the  common  law,  is  a  common  carrier  of  passengers,  in  a  case 
where  the  company,  by  their  rules  and  regulations,  have  designated 
a  certain  car  in  their  passenger  train  for  the  exclusive  use  of  ladies, 
and  gentlemen  accompanied  by  ladies,  can  exclude  from  the  privi- 
leges of  such  car  a  colored  woman,  holding  a  first-class  ticket,  for 
no  other  reason  except  her  color. 

The  evidence  in  the  case  establishes  these  facts  —  tliat,  as  was  the 
custom  on  appellants'  road,  tliey  had  set  apart  in  tlieir  passenger 
trains  a  car  for  the  exclusive  use  of  ladies,  and  gentlemen  accom- 
panied by  ladies,  and  that  such  a  car,  called  the  "ladies'  car,"  \vas 
attached  to  the  train  in  question.  The  appellee  resided  at  Kock- 
ford,  and  being  desirous  of  going  from  that  station  to  r)elvidpre,  on 
the  road  of  appellants,  for  that  purpose  purcliased  of  the  agent  of 
the  appellants  a  ticket,  which  entitled  the  holder  to  a  seat  in  a  first- 
class  car  on  their  road.  On  the  arrival  of  the  train  at  the  Rockford 
Station,  the  appellee  offered  and  endeavored  to  enter  the  ladies'  car, 
but  wa.s  refused  jjermission  so  to  do,  and  was  directed  to  go  forward 
to  the  car  set  apart  for  and  occupied  mostly  by  men. 

On  the  appellee  persisting  on  entering  the  ladies'  car,  force 
enough  was  used  by  the  brakeman  to  prevent  her.  At  the  time  she 
attempted  to  obtain  a  seat  in  that  car,  on  ajtpellants'  train,  there 
vrerr?  vaf.int  and  unoccupied  seats  in  it,  for  one  of  the  female  wit- 
that  she,  with  two  other  ladies,  a  few  moments  after- 
njd  the  same  car  at  that  station,  and  found  two  vacant 
seats,  and  occupied  the  same.     No  objection  whatever  was  made, 


REGULATIONS.  717 

nor  is  it  insisted  any  other  existed,  to  appellee  taking  a  seat  in  the 
ladies'  car,  except  her  color.  The  appellee  was  clad  in  plain  and 
decent  apparel,  and  it  is  not  suggested,  in  the  evidence  or  otherwise, 
that  she  was  not  a  woman  of  good  character  and  proper  behavior. 

It  does  not  appear  that  the  company  has  ever  set  apart  a  car  for 
the  exclusive  use,  or  provided  any  separate  seats  for  the  use,  of  col- 
ored persons  who  might  desire  to  pass  over  their  line  of  road.  The 
evidence  discloses  that  colored  women  sometimes  rode  in  the  ladies' 
car,  and  sometimes  in  the  other  car,  and  there  was,  in  fact,  no  rule 
or  regulation  of  the  company  in  regard  to  colored  passengers. 

The  case  turns  somewhat  on  what  are  reasonable  rules,  and  the 
power  of  railroad  companies  to  establish  and  enforce  them. 

It  is  the  undoubted  right  of  railroad  companies  to  make  all  rea- 
sonable rules  and  regulations  for  the  safety  and  comfort  of  passen- 
gers travelling  on  their  lines  of  road.  It  is  not  only  their  right,  but 
it  is  their  duty  to  make  such  rules  and  regulations.  It  is  alike  the 
interest  of  the  companies  and  the  public  that  such  rules  should  be 
established  and  enforced,  and  ample  authority  is  conferred  by  law 
on  the  agents  and  servants  of  the  companies  to  enforce  all  reason- 
able regulations  made  for  the  safety  and  convenience  of  passengers. 

It  was  held  in  the  case  of  111.  Cent.  R.  R.  Co.  v.  Whittemore,  43 
111.  423,  that,  for  a  non-compliance  with  a  reasonable  rule  of  the 
company,  a  party  might  be  expelled  from  a  train  at  a  point  other 
than  a  regular  station. 

If  a  person  on  a  train  becomes  disorderly,  profane,  or  dangerous 
and  offensive  in  his  conduct,  it  is  the  duty  of  the  conductor  to  expel 
such  guilty  party,  or  at  least  to  assign  him  to  a  car  where  he  will 
not  endanger  or  annoy  the  other  passengers.  Whatever  rules  tend 
to  the  comfort,  order,  and  safety  of  the  passengers,  the  company  are 
fully  authorized  to  make,  and  are  amply  empowered  to  enforce  com- 
pliance therewith. 

But  such  rules  and  regulations  must  always  be  reasonable,  and 
uniform  in  respect  to  persons. 

A  railroad  company  cannot  capriciously  discriminate  between  pas- 
sengers on  account  of  their  nativity,  color,  race,  social  position,  or 
their  political  or  religious  beliefs.  Whatever  discriminations  are 
made,  must  be  on  some  principle,  or  for  some  reason,  that  the  law 
recognizes  as  just  and  equitable,  and  founded  in  good  public  policy. 
What  are  reasonable  rules  is  a  question  of  law,  and  is  for  the  court 
to  determine,  under  all  the  circumstances  in  each  particular  case. 

In  the  present  instance,  the  rule  that  set  apart  a  car  for  the  exclu- 
sive use  of  ladies,  and  gentlemen  accompanied  by  ladies,  is  a  rea- 
sonable one,  and  the  power  of  the  company  to  establish  it  has  never 
been  doubted. 

If  the  appellee  is  to  be  denied  the  privilege  of  the  "ladies'  car," 
for  which  she  was  willing  to  pay,  and  had  paid,  full  compensation 
to  the  company,  a  privilege  which  is  accorded  alike  to  all  women, 


718  CARRIERS   OF   PASSENGERS. 

whether  they  are  rich  or  poor,  it  must  be  on  some  principle  or  under 
some  rule  of  the  company  that  the  la\v  Avould  recognize  as  reasonable 
and  just.  If  she  was  denied  that  privilege  by  the  mere  caprice  of 
the  brakeman  and  conductor,  and  under  no  reasonable  rule  of  the 
company,  or,  what  is  still  worse,  as  the  evidence  would  indicate, 
through  mere  wantonness  on  the  part  of  the  brakeman,  then  it  was 
unreasonable,  and  therefore  unlawful.  It  is  not  pretended  that 
there  was  any  rule  that  excluded  her,  or  that  the  managing  ofl&cers 
of  the  compiiny  had  ever  given  any  direction  to  exclude  colored  per- 
sons from  that  car.  If,  however,  there  was  such  a  rule,  it  could  not 
be  justified  on  the  ground  of  mere  prejudice.  Such  a  rule  must  have 
for  its  foundation  a  better  and  a  sounder  reason,  and  one  more  in 
consonance  with  the  enlightened  judgment  of  reasonable  men.  An 
unreasonable  rule,  that  affects  the  convenience  and  comfort  of  pas- 
sengers, is  unlawful,  simply  because  it  is  unreasonable.  The  State 
t?.  Overton,  4  Zab.  435. 

In  the  case  of  the  West  Chester  &  Philadelphia  R.  R.  Co.  v. 
Miles,  55  Penn.  209,  it  was  admitted,  that  no  one  could  be  excluded 
from  a  carriage  by  a  public  carrier  on  account  of  color,  religious 
belief,  political  relations  or  prejudice,  but  it  was  held,  not  to  be  an 
unreasonable  regulation  to  seat  passengers  so  as  to  preserve  order 
and  decorum,  and  prevent  contacts  and  collisions  arising  from  well- 
known  repugnances,  and  therefore  a  rule  that  required  a  colored 
woman  to  occupy  a  se])arate  seat  in  a  car  furnished  by  the  company, 
equally  as  comfortable  and  safe  as  that  furnished  for  other  pas- 
sengers, was  not  an  unreasonable  rule. 

Under  some  circumstances,  this  might  not  be  an  unreasonable 
rule. 

At  all  events,  public  carriers,  until  they  do  furnish  separate  seats 
equal  in  comfort  and  safety  to  those  furnished  for  other  travellers, 
must  be  held  to  have  no  right  to  discriminate  between  passengers  on 
account  of  color,  race,  or  nativity,  alone. 

We  do  not  understand  tliat  tlic  appellee  was  bound  to  go  forward 
to  the  car  set  apart  for  and  occu])ied  mostly  by  men,  when  she  was 
directed  by  the  ])rakeman.  It  is  a  sufficient  answer  to  say,  that 
that  car  was  not  provided  by  any  rule  of  the  company  for  the  use  of 
women,  and  that  another  one  was.  This  fact  was  known  to  the  ap- 
pellee at  the  time.  She  may  have  undertaken  the  journey  alone,  in 
view  of  that  very  fact,  as  women  often  do. 

The  aljove  views  dispose  of  all  the  objections  taken  to  tlie  instruc- 
tions given  by  tlie  court  on  behalf  of  the  appellee,  and  the  refusal  of 
the  court  to  give  those  asked  on  tlie  part  of  the  ai)i)ellants,  except 
the  one  wliich  tells  the  jury  tliat  tliey  may  give  damages  above  the 
actual  damages  sustained,  for  the  delay,  vexation,  and  indignity  to 
wliich  the  appellee  was  exposed,  if  she  was  wrongfully  excluded 
Irom  the  car.  If  tlie  ])arty  in  sucli  case  is  confined  to  the  actual 
pecuniary  damages  sustained,  it  would,  most  often,  be  no  comi)ensa- 


REGULATIONS.  719 

tion  at  all,  above  nominal  damages,  and  no  salutary  effect  would  be 
produced  on  the  wrong-doer  by  such  a  verdict.  But  we  apprehend, 
that  if  the  act  is  wrongfully  and  wantonly  committed,  the  party 
may  recover,  in  addition  to  the  actual  damages,  something  for  the 
indignity,  vexation,  and  disgrace  to  which  the  party  has  been 
subjected. 

It  is  insisted  that  the  damages  are  excessive,  in  view  of  the  slight 
injury  sustained. 

There  is  evidence  from  which  the  jury  could  find  that  the  brake- 
man  treated  the  appellee  very  rudely,  and  placed  his  hand  on  her 
and  pushed  her  away  from  the  car.  The  act  was  committed  in  a 
public  place,  and  whatever  disgrace  was  inflicted  on  her  was  in  the 
presence  of  strangers  and  friends.  The  act  was,  in  itself,  wrongful, 
and  without  the  shadow  of  a  reasonable  excuse,  and  the  damages  are 
not  too  high.  The  jury  saw  the  witnesses,  and  heard  their  testi- 
mony, and  with  their  finding  we  are  fully  satisfied. 

Perceiving  no  error  in  the  record,  the  judgment  is  affirmed. 

Judgment  affirmed. 

Mr.  Justice  Sheldok,  having  heard  this  cause  in  the  court  below, 
took  no  part  in  this  decision. 

Breese,  J.  I  am  not  prepared  to  assent  to  all  the  reasoning  and 
conclusions  of  the  above  opinion,  and  I  am  further  of  opinion  the 
damages  are  excessive. 


APPENDIX. 


IMPORTANT  FEDERAL   STATUTES   RELATING  TO 
CARRIERS. 


LIMITATION   OF   LIABILITY. 


REVISED   STATUTES  OF   THE  UXITED   STATES. 

Section  4281.  If  any  shipper  of  platina,  gold,  gold  dust,  silver,  bullion, 
or  other  precious  metals,  coins,  jewelry,  bills  of  any  bank  or  public  body, 
diamonds,  or  other  precious  stones,  or  any  gold  or  silver  in  a  manufactured 
or  unmanufactured  state,  watches,  clocks,  or  time-pieces  of  any  description, 
trinkets,  orders,  notes,  or  securities  for  payment  of  money,  stamps,  maps, 
writings,  title-deeds,  printings,  engravings,  pictures,  gold  or  silver  plate  or 
plated  articles,  glass,  china,  silks  in  a  manufactured  or  unmanufactured  state, 
and  whether  wrought  up  or  not  wrought  up  with  any  other  material,  furs,  or 
lace,  or  any  of  them,  contained  in  any  parcel,  or  package,  or  trunk,  shall  lade 
the  same  as  freight  or  baggage,  on  any  vessel,  without  at  the  time  of  such 
lading  giving  to  the  master,  clerk,  agent,  or  owner  of  such  vessel  receiving  the 
same  a  written  notice  of  the  true  character  and  value  thereof,  and  having  the 
same  entered  on  the  bill  of  lading  therefor,  the  master  and  owner  of  such 
vessel  shall  not  be  liable  as  carriers  thereof  in  any  form  or  manner;  nor  shall 
any  such  master  or  owner  be  liable  for  any  such  goods  beyond  the  value  and 
according  to  the  character  thereof  so  notified  and  entered.  [28  Feb.,  1871, 
c.  100,  §  69.] 

Sec.  4282.  No  owner  of  any  vessel  shall  be  liable  to  answer  for  or  make 
good  to  any  person  any  loss  or  damage  which  may  happen  to  any  merchandise 
whatsoever,  which  shall  be  shipped,  taken  in,  or  put  on  board  any  such  vessel, 
by  reason  or  by  means  of  any  fire  happening  to  or  on  board  the  vessel,  unless 
such  fire  is  caused  by  the  design  or  neglect  of  such  owner.  [3  Mar.  1851, 
c.  43,  §  1.] 

Sec.  4283.  The  liability  of  the  owner  of  any  vessel,  for  any  embezzlement, 
loss,  or  destruction,  by  any  person,  of  any  property,  goods,  or  merchandise, 
shipped  or  put  on  board  of  such  vessel,  or  for  any  loss,  damage,  or  injury  by 
collision,  or  for  any  act,  matter,  or  thing,  lost,  damage,  or  forfeiture,  done, 
occasioned,  or  incurred,  without  the  privity,  or  knowledge  of  such  owner  or 
owners,  shall  in  no  case  exceed  the  amount  or  value  of  the  interest  of  such 
owner  in  such  vessel,  and  her  freight  then  pending.     [Ibid.  §  3.] 

46 


722  APPENDIX. 

Sec.  42S4.  Whenever  any  such  embezzlement,  loss,  or  destruction  is  suf- 
fered by  several  freighters  or  owners  of  goods,  wares,  merchandise,  or  any 
property  whatever,  on  the  same  voyage,  and  the  whole  value  of  the  vessel,  and 
her  freight  for  the  voyage,  is  not  sutticient  to  make  compensation  to  each  of 
them,  thev  shall  receive  compensation  from  the  owner  of  the  vessel  in  propor- 
tion to  their  respective  losses;  and  for  that  purpose  the  freighters  and  owners 
of  the  property,  and  "the  owner  of  the  vessel,  or  any  of  them,  may  take  the 
appropriate  proceedings  in  any  court,  for  the  purpose  of  apportioning  the  sum 
for  which  the  owner  of  the  vessel  may  be  liable  among  the  parties  entitled 
thereto.     [Ibid.  §  4;  27  Feb.  1S77,  c.  G9.] 

Sfx.  42S5.  It  shall  be  deemed  a  sufficient  compliance  on  the  part  of  such 
owner  with  the  requirements  of  this  Title  relating  to  his  liability  for  any  em- 
bezzlement, loss,  or  destruction  of  any  property,  goods,  or  merchandise,  if  he 
shall  transfer  his  interest  in  such  vessel  and  freight,  for  the  benefit  of  such 
claimants,  to  a  trustee,  to  be  appointed  by  any  court  of  competent  jurisdiction, 
to  act  as  such  trustee  for  the  person  who  may  prove  to  be  legally  entitled 
thereto ;  from  and  after  which  transfer  all  claims  and  proceedings  against  the 
owner  shall  cease.     [3  Mar.  1851,  c.  43,  §  4.] 

Skc.  42>'G.  The  charterer  of  any  vessel,  in  case  he  shall  man,  victual,  and 
navigate  such  vessel  at  his  own  expense,  or  by  his  own  procurement,  shall  be 
deemed  the  owner  of  such  vessel  within  the  meaning  of  the  provisions  of  this 
Title  relating  to  the  limitation  of  the  liability  of  the  owners  of  vessels;  and 
such  vessel,  when  so  chartered,  shall  be  liable  in  the  same  manner  as  if  navi- 
gated by  the  owner  thereof.     [Ibid.  §  5.]  • 

Skc.  4287.  Nothing  in  the  five  preceding  sections  shall  be  construed  to 
take  away  or  affect  the  remedy  to  which  any  party  may  be  entitled,  against 
the  master,  officers,  or  seamen,  for  or  on  account  of  any  embezzlement,  injury, 
loss,  or  destruction  of  merchandise,  or  property,  put  on  board  any  vessel,  or  on 
account  of  any  negligence,  fraud,  or  other  malversation  of  such  master,  officers, 
or  seamen,  respectively,  nor  to  lessen  or  take  away  any  responsibility  to  which 
any  master  or  seaman  of  any  vessel  may  by  law  be  liable,  notwithstanding 
such  master  or  seaman  may  be  an  owner  or  part  owner  of  the  vessel.     [Ibid. 

§6-] 

Sec.  428S.    Any  person  shipping  oil  of  vitriol,  unslaked  lime,  inflammable 

matches,  or  gunpowder,  in  a  vessel  taking  cargo  for  divers  persons  on  freight, 
without  delivering,  at  the  time  of  sliiinnent,  a  note  in  writing,  expressing  the 
nature  and  character  of  such  merchandise,  to  the  master,  mate,  othcer,  or 
person  in  charge  of  the  lading  of  tlie  vessel,  shall  be  liable  to  the  United  States 
in  a  penalty  of  one  thousand  dollars.  liut  this  section  shall  not  apply  to  any 
vessel  of  any  description  whatsoever  used  in  rivers  or  inland  navigation. 
[Ibid.  §7.] 

Sec.  4289.  The  pronsions  of  the  seven  preceding  sections,  and  of  section 
eighteen  of  an  act  entitled  "  An  act  to  remove  certain  burdens  on  the  American 
merchant  marine  and  encourage  the  American  foreign  carrying-trade,  and  for 
other  purposes,"  approved  June  twenty-sixth,  eighteen  hundred  and  eighty- 
four,  relating  to  the  limitations  of  the  liability  of  the  owners  of  vessels,  shall 
apply  t*}  all  sea-going  vessels,  and  also  to  all  vessels  used  on  lakes  or  rivers  or 
in  inland  navigation,  inchuling  canal-boats,  barges,  and  lighters.  [Ibid.;  18 
Feb.  l>>7y,  c.  8(J;  as  amended  by  Act  of  I'J  June,  1880,  c.  421,  §  4.] 


APPENDIX.  723 

ACT  OF  JUNE  26,  1884,  c.  121. 
(23  Stat,  at  Large,  57.) 

Sec.  18.  That  the  individual  liability  of  a  ship-owner  shall  be  limited  to 
the  proportion  of  any  or  all  debts  and  liabilities  that  his  individual  share  of 
the  vessel  bears  to  the  whole ;  and  the  aggregate  liabilities  of  all  the  owners  of 
a  vessel  on  account  of  the  same  shall  not  exceed  the  value  of  such  vessels  and 
freight  pending:  Provided,  That  this  provision  shall  not  affect  the  liability  of 
any  owner  incurred  previous  to  the  passage  of  this  act,  nor  prevent  any  claim- 
ant from  joining  all  the  owners  in  one  action ;  nor  shall  the  same  apply  to 
wages  due  to  persons  employed  by  said  ship-owners. 


BILLS   OF  LADING. 

ACT   OF   FEB.   13,  1893,  c.   105. 
(27  Stat,  at  Large,  445.) 

Be  it  enacted,  etc.,  That  it  shall  not  be  lawful  for  the  manager,  agent, 
master,  or  owner  of  any  vessel  transporting  merchandise  or  property  from  or 
between  ports  of  the  United  States  and  foreign  ports  to  insert  in  any  bill  of 
lading  or  shipping  document  any  clause,  covenant,  or  agreement  whereby  it, 
he,  or  they  shall  be  relieved  from  liability  for  loss  or  damage  arising  from 
negligence,  fault,  or  failure  in  proper  loading,  stowage,  custody,  care,  or  proper 
delivery  of  any  and  all  lawful  merchandise  or  property  committed  to  its  or  their 
charge.  Any  and  all  words  or  clauses  of  such  import  inserted  in  bills  of  lading 
or  shipping  receipts  shall  be  null  and  void  and  of  no  effect. 

Sec.  2.  That  it  shall  not  be  lawful  for  any  vessel  transporting  merchandise 
or  property  from  or  between  ports  of  the  United  States  of  America  and  foreign 
ports,  her  owner,  master,  agent,  or  manager,  to  insert  in  any  bill  of  lading  or 
shipping  document  any  covenant  or  agreement  whereby  the  obligations  of  the 
owner  or  owners  of  said  vessel  to  exercise  due  diligence  properly  equip,  man, 
provision,  and  outfit  said  vessel,  and  to  make  said  vessel  seaworthy  and  capable 
of  performing  her  intended  voyage,  or  whereby  the  obligations  of  the  master, 
officers,  agents,  or  servants  to  carefully  handle  and  stow  her  cargo  and  to  care 
for  and  properly  deliver  same,  shall  in  any  wise  be  lessened,  weakened,  or 
avoided. 

Sec.  3.  That  if  the  owner  of  any  vessel  transporting  merchandise  or 
property  to  or  from  any  port  in  the  United  States  of  America  shall  exercise 
due  diligence  to  make  the  said  vessel  in  all  respects  seaworthy  and  properly 
manned,  equipped,  and  supplied,  neither  the  vessel,  her  owner  or  owners, 
agent,  or  charterers  shall  become  or  be  held  responsible  for  damage  or  loss 
resulting  from  faults  or  errors  in  navigation  or  in  the  management  of  said 
vessel  nor  shall  the  vessel,  her  owner  or  owners,  charterers,  agent,  or  master 
be  held  liable  for  losses  arising  from  dangers  of  the  sea  or  other  navigable 
waters,  acts  of  God,  or  public  enemies,  or  the  inherent  defect,  quality,  or  vice 
of  the  thing  carried,  or  from  insufficiency  of  package,  or  seizure  under  legal 
process,  or  for  loss  resulting  from  any  act  or  omission  of  the  shipper  or  owner 
of  the  goods,  his  agent  or  representative,  or  from  saving  or  attempting  to  save 
life  or  property  at  sea,  or  from  any  deviation  in  rendering  such  service. 


72-4  APPENDIX. 

Sec.  4.  That  it  shall  be  the  duty  of  the  owner  or  owners,  masters,  or  agent 
of  any  vessel  transporting  merchandise  or  property  from  or  between  ports  of 
the  United  States  and  foreign  ports  to  issue  to  shippers  of  any  lawful  mer- 
chandise a  bill  of  lading,  or  shipping  document,  stating,  among  other  things, 
the  marks  necessary  for  identification,  number  of  packages,  or  quantity,  stating 
whether  it  be  carrier's  or  shipper's  weight,  and  apparent  order  or  condition  of 
such  merchandise  or  property  delivered  to  and  received  by  the  owner,  master, 
or  agent  of  the  vessel  for  transportation,  and  such  document  shall  be  prima 
facie  erideuce  of  the  receipt  of  the  merchandise  therein  described. 

Sec.  5.  That  for  a  violation  of  any  of  the  provisions  of  this  act  the  agent, 
owner,  or  master  of  the  vessel  guilty  of  such  violation,  and  who  refuses  to  issue 
on  demand  the  bill  of  lading  herein  provided  for,  shall  be  liable  to  a  fine  not 
exceeding  two  thousand  dollars.  The  amount  of  the  fine  and  costs  for  such 
violation  shall  be  a  lien  upon  the  vessel,  whose  agent,  owner,  or  master  is  guilty 
of  such  violation,  and  such  vessel  may  be  libelled  therefor  in  any  district  court 
of  the  United  States,  within  whose  jurisdiction  the  vessel  may  be  found.  One- 
half  of  such  penalty  shall  go  to  the  party  injured  by  such  violation  and  the 
remainder  to  the  Government  of  the  United  States. 

Sec.  G.  That  this  act  shall  not  be  held  to  modify  or  repeal  sections  forty- 
two  hundred  and  eighty-one,  forty-two  hundred  and  eighty-two,  and  forty-two 
hundred  and  eighty-three  of  the  Revised  Statutes  of  the  United  States,  or  any 
other  statute  defining  the  liability  of  vessels,  their  owners,  or  representatives. 

Sec.  7.  Sections  one  and  four  of  this  act  shall  not  apply  to  the  transporta- 
tion of  live  animals. 

Sec.  8.  This  act  shall  take  effect  from  and  after  the  first  day  of  July, 
eighteen  hundred  and  ninety-three. 

Approved,  February  13,  1893. 


INTERSTATE   COMMERCE. 

ACTS   OF    CONGRESS,    FEB.    4.    18^7,  c.  101;  MAR.    2,    18S9,   c.    382; 
FEB.    in,    l.syi,   c.  12S. 

(24   St.vt.    at    large,   379  ;  25  Id.  855;  2G  Id.  743.) 

Be  it  enncteil,  file.  That  the  provisions  of  this  act  sliall  apply  to  any  com- 
mon carrier  or  carriers  engaged  in  the  transportation  of  passengers  or 
property  wholly  by  railroad,  or  partly  by  railroad  and  partly  by  water  when 
both  are  u.sed,  under  a  common  control,  management,  or  arrangement,  for 
a  continuous  carriage  or  shipment,  from  one  State  or  Territory  of  the 
United  States,  or  the  District  of  Columbia,  to  any  other  State  or  Territory  of 
the  United  States  or  the  District  of  Columbia  or  from  any  place  in  the  United 
States  to  an  adjacent  foreign  country,  or  from  any  place  in  the  United 
StateM  through  a  fon-ign  country  to  any  other  place  in  the  United  States, 
and  also  to  the  tranHjJortation  in  like  manner  of  property  shipped  from  any 
place  in  the  United  States  to  a  foreign  country  and  carried  from  such  place 
to  a  jiort  of  transshipment,  or  Bliipj>ed  from  a  foreign  country  to  any  ]>lace 
in  the  United  St.-ite.s  and  carrie<l  to  such  place  from  a  port  of  entry  either 
in  Iho  United  States  or  an  adjacent  foreign  country; 

Provided,  however,     That  the  provisions  of  tliis  act  shall  not  apply  to  the 


APPENDIX.  725 

transportation  of  passengers  or  property,  or  to  the  receiving,  delivering, 
storage,  or  handling  of  property,  wholly  within  one  State,  and  not  shipped 
to  or  from  a  foreign  country  from  or  to  any  State  or  Territory  as  aforesaid. 

The  term  "  railroad  "  as  used  in  this  act  shall  include  all  bridges  and  fer- 
ries used  or  operated  in  connection  with  any  railroad,  and  also  all  the  road 
in  use  by  any  corporation  operating  a  railroad,  whether  owned  or  operated 
under  a  contract,  agreement,  or  lease ;  and  the  term  "transportation"  shall 
include  all  instrumentalities  of  shipment  or  carriage. 

All  charges  made  for  any  service  rendered  or  to  be  rendered  in  the  trans- 
portation of  passengers  or  property  as  aforesaid,  or  in  connection  therewith, 
or  for  the  receiving,  delivering,  storage,  or  handling  of  such  property,  shall 
be  reasonable  and  just  ; 

And  every  unjust  and  unreasonable  charge  for  such  service  is  prohibited 
and  declared  to  be  unlawful. 

Sec.  2.  That  if  any  common  carrier  subject  to  the  provisions  of  this  act 
shall,  directly  or  indirectly,  by  any  special  rate,  rebate,  drawback,  or  other 
device,  charge,  demand,  collect,  or  receive  from  any  person  or  persons  a 
greater  or  less  compensation  for  any  service  rendered,  or  to  be  rendered, 
in  the  transportation  of  passengers  or  property,  subject  to  the  provisions  of 
this  act,  than  it  charges,  demands,  collects,  or  receives  from  any  other  per- 
son or  persons  for  doing  for  him  or  them  a  like  and  contemporaneous  ser- 
vice in  the  transportation  of  a  like  kind  of  traffic  under  substantially  similar 
circumstances  and  conditions,  such  common  carrier  shall  be  deemed  guilty 
of  unjust  discrimination,  which  is  hereby  prohibited  and  declared  to  be  un- 
lawful. 

Sec.  3.  That  it  shall  be  unlawful  for  any  common  carrier  subject  to  the 
provisions  of  this  act  to  make  or  give  any  undue  or  unreasonable  prefer- 
ence or  advantage  to  any  particular  person,  company,  firm,  corporation,  or 
locality,  or  any  particular  description  of  traffic,  in  any  respect  whatsoever, 
or  to  subject  any  particular  person,  company,  firm,  corporation,  or  locality, 
or  any  particular  description  of  traffic,  to  any  undue  or  unreasonable  preju- 
dice or  disadvantage  in  any  respect  whatsoever. 

Every  common  carrier  subject  to  the  provisions  of  this  act  shall,  accord- 
ing to  their  respective  powers,  afford  all  reasonable,  proper,  and  equal 
facilities  for  the  interchange  of  traffic  between  their  respective  lines,  and 
for  the  receiving,  forwarding,  and  delivering  of  passengers  and  property  to 
and  from  their  several  lines  and  those  connecting  therewith,  and  shall  not 
discriminate  in  their  rates  and  charges  between  such  connecting  lines  ; 

But  this  shall  not  be  construed  as  requiring  any  such  common  carrier  to 
give  the  use  of  its  tracks  or  terminal  facilities  to  another  carrier  engaged  in 
like  business. 

Sec.  4.  That  it  shall  be  unlawful  for  any  common  carrier  subject  to  the 
provisions  of  this  act  to  charge  or  receive  any  greater  compensation  in  the 
aggregate  for  the  transportation  of  passengers  or  of  like  kind  of  property, 
under  substantially  similar  circumstances  and  conditions,  for  a  shorter  than 
for  a  longer  distance  over  the  same  line,  in  the  same  direction,  the  shorter 
being  included  within  the  longer  distance  ;  but  this  shall  not  be  construed  as 
authorizing  any  common  carrier  within  the  terms  of  this  act  to  charge  and 
receive  as  great  compensation  for  a  shorter  as  for  a  longer  distance ; 

Provided,  Jwrvever,  That  upon  application  to  the  Commission  appointed 
under  the  provisions  of  this  act,  such  common  carrier  may,  in  special  cases, 
after  investigation  by  the   Commission,    be   authorized  to   charge  less  for 


726  APPENDIX. 

longer  than  for  shorter  distances  for  the  transportation  of  passengers  or 
property  ;  and  the  Commission  may  from  time  to  time  prescribe  the  extent 
to  which  such  designated  common  carrier  may  be  relieved  from  the  opera- 
tion of  this  section  of  this  act. 

Sec  5.  That  it  shall  be  unlawful  for  any  common  carrier  subject  to  the 
provisions  of  this  act  to  enter  into  any  contract,  agreement,  or  combination 
with  any  other  common  carrier  or  carriers  for  the  pooling  of  freights  of 
different  and  competing  railroads,  or  to  divide  between  them  the  aggregate 
or  net  proceeds  of  the  earnings  of  such  railroads,  or  any  portion  thereof  ; 

And  in  any  case  of  an  agreement  for  the  pooling  of  freights  as  aforesaid, 
each  day  of  its  continuance  shall  be  deemed  a  separate  offence. 

Sec.  6.  That  every  common  carrier  subject  to  the  provisions  of  this  act 
shall  print  and  keep  open  to  public  inspection  schedules  showing  the  rates 
and  fares  and  charges  for  the  transportation  of  passengers  and  property 
wliich  any  such  common  carrier  has  established  and  which  are  in  force  at 
the  time  upon  its  route. 

The  schedules  printed  as  aforesaid  by  any  such  common  carrier  shall 
plainly  state  the  places  upon  its  railroad  between  which  property  and  pas- 
sengers will  be  carried,  and  shall  contain  the  classification  of  freight  in  force, 
and  shall  also  state  separately  the  terminal  charges  and  any  rules  or  regu- 
lations which  in  any  wise  change,  affect,  or  determine  any  part  or  the 
aggregate  of  such  aforesaid  rates  and  fares  and  charges. 

Such  schedules  shall  be  plainly  printed  in  large  type,  and  copies  for  the 
use  of  the  public  shall  be  posted  in  two  public  and  conspicuous  places,  in 
every  depot,  station,  or  office  of  such  carrier  where  passengers  or  freight, 
respectively,  are  received  for  transportation  in  such  form  that  they  shall 
be  accessible  to  the  public  and  can  be  conveniently  inspected. 

Anv  common  carrier  subject  to  the  provisions  of  this  act  receiving 
freight  in  the  United  States  to  be  carried  through  a  foreign  country  to  any 
place  in  the  United  States  shall  also  in  like  manner  print  and  keep  open  to 
public  inspection,  at  every  depot  or  office  where  such  freight  is  received 
for  shipment,  schedules  showing  the  through  rates  established  and  charged 
by  such  common  carrier  to  all  points  in  the  United  States  beyond  the 
foreign  country  to  which  it  accepts  freight  for  shipment  ; 

And  any  freight  shipped  from  the  United  States,  through  a  foreign 
country  into  the  United  States,  the  through  rate  on  which  shall  not  have 
been  made  public  as  required  by  this  act,  shall,  before  it  is  admitted  into 
the  United  States  from  said  foreign  country,  be  subject  to  customs  duties 
as  if  said  freight  were  of  foreign  production  ;  and  any  law  in  conflict  with 
this  section  is  hereby  repealed. 

No  advance  shall  be  made  in  the  rates,  fares,  and  charges  which  have 
been  establi.shed  and  published  as  aforesaid  by  any  common  carrier  in 
compliance  with  the  ri-fjuirements  of  this  section,  except  after  ten  days' 
public  notice,  which  shall  plaiidy  state  the  changes  proposed  to  be  made 
in  the  .schedule  then  in  force,  and  the  time  when  the  increased  rates,  fares, 
or  charge.s  will  go  into  effect  ;  and  the  proposed  changes  .shall  be  shown  by 
printing  new  schedules,  or  shall  be  i)lainly  indicated  upon  the  schedules 
iu  force  at  the  time  and  kept  open  to  public  inspection. 

Keductions  in  such  jiublished  rates,  fares,  or  charges  shall  otdy  be  made 
after  three  days'  previous  public  notice,  to  be  given  in  the  same  manner 
that  Jiolice  of  an  advance  in  rates  must  be  given. 

And  when  any   such   common    carrier   siiall    have  establi.'shed    and    pub- 


APPENDIX.  727 

liahed  its  rates,  fares,  and  charges  in  compliance  with  the  provisions  of 
this  section,  it  shall  be  unlawful  for  such  common  carrier  to  charge,  de- 
mand, collect,  or  receive  from  any  person  or  persons  a  greater  or  less  com- 
pensation for  the  transportation  of  passengers  or  property,  or  for  any 
services  in  connection  therewith,  than  is  specified  in  such  published 
schedule  of  rates,  fares,  and  charges  as  may  at  the  time  be  in  force. 

Every  common  carrier  subject  to  the  provisions  of  this  act  shall  file 
with  the  Commission  hereinafter  provided  for  copies  of  its  schedules  of 
rates,  fares,  and  charges  which  have  been  established  and  published  in 
compliance  with  the  requirements  of  this  section,  and  shall  promptly 
notify  said  Commission  of  all  changes  made  in  the  same.  Every  such 
common  carrier  shall  also  file  with  said  Commission  copies  of  all  contracts, 
agreements,  or  arrangements  with  other  common  carriers  in  relation  to 
any  traffic  affected  by  the  provisions  of  this  act  to  which  it  may  be  a  party. 

And  in  cases  where  passengers  and  freight  pass  over  continuous  lines  or 
routes  operated  by  more  than  one  common  carrier,  and  the  several  com- 
mon carriers  operating  such  lines  or  routes  establish  joint  tariffs  of  rates 
or  fares  or  charges  for  such  continuous  lines  or  routes,  copies  of  such 
joint  tariffs  shall  also,  in  like  manner,  be  filed  with  said  Commission. 
Such  joint  rates,  fares,  and  charges  on  such  continuous  lines  so  filed 
as  aforesaid  shall  be  made  public  by  such  common  carriers  when  directed  by 
said  Commission,  in  so  far  as  may,  in  the  judgment  of  the  Commission,  be 
deemed  practicable ; 

And  said  Commission  shall  from  time  to  time  prescribe  the  measure  of 
publicity  which  shall  be  given  to  such  rates,  fares,  and  charges,  or  to  such 
part  of  them  as  it  may  deem  it  practicable  for  such  common  carrier  to 
publish,  and  the  places  in  which  they  shall  be  published. 

Xo  advance  shall  be  made  in  joint  rates,  fares,  and  charges,  shown 
upon  joint  tariffs,  except  after  ten  days'  notice  to  the  Commission,  which 
shall  plainly  state  the  changes  proposed  to  be  made  in  the  schedule  then  in 
force,  and  the  time  when  the  increased  rates,  fares,  or  charges  will  go  into 
effect. 

A>io  reduction  shall  be  made  in  joint  rates,  fares,  and  charges,  except 
after  three  days'  notice,  to  be  given  to  the  Commission  as  is  above  pro- 
vided in  the  case  of  an  advance  of  joint  rates. 

The  Commission  may  make  public  such  proposed  advances  or  such  re- 
ductions, in  such  manner  as  may,  in  its  judgment,  be  deemed  practicable, 
and  may  prescribe  from  time  to  time  the  measure  of  publicity  which  com- 
mon carriers  shall  give  to  advances  or  reductions  in  joint  tariffs. 

It  shall  be  unlawful  for  any  common  carrier,  party  to  any  joint  tariff, 
to  charge,  demand,  collect,  or  receive  from  any  person  or  persons  a  greater 
or  less  compensation  for  the  transportation  of  persons  or  property,  or  for 
any  services  in  connection  therewith,  between  any  points  as  to  which  a 
joint  rate,  fare,  or  charge  is  named  thereon  than  is  specified  in  the  schedule 
filed  with  the  Commission  in  force  at  the  time. 

The  Commission  may  determine  and  prescribe  the  form  in  which  the 
schedules  required  by  this  section  to  be  kept  open  to  public  inspection 
shall  be  prepared  and  arranged,  and  may  change  the  form  from  time  to 
time  as  shall  be  found  expedient. 

If  any  such  common  carrier  shall  neglect  or  refuse  to  file  or  publish 
its  schedules  or  tariffs  of  rates,  fares,  and  charges  as  provided  in  this  sec- 
tion, or  any  part   of   the   same,  such   common   carrier  shall,  in  addition  to 


-OS  APPENDIX. 

other  penalties  herein  prescribed,  be  subject  to  a  writ  of  mandamus,  to  be 
issued  by  any  circuit  court  of  the  United  States  in  the  judicial  district 
wherein  the  principal  office  of  said  common  carrier  is  situated,  or  wherein 
such  offence  mav  be  committed,  and  if  such  common  carrier  be  a  foreign 
corporation  in  the  judicial  circuit  wherein  such  common  carrier  accepts 
tratfic  and  has  an  agent  to  perform  such  service,  to  compel  compliance 
with  the  aforesaid  provisions  of  this  section  ;  and  such  writ  shall  issue  in 
the  name  of  the  people  of  the  United  States,  at  the  relation  of  the  Commis- 
sioners appointed  under  the  provisions  of  this  act  ;  and  the  failure  to  com- 
ply with  its  requirements  shall  be  punishable  as  and  for  a  contempt. 

And  the  said  Commissioners,  as  complainants,  may  also  apply,  in  any 
such  circuit  court  of  the  United  States,  for  a  writ  of  injunction  against 
such  common  carrier,  to  restrain  such  common  carrier  from  receiving  or 
transporting  property  among  the  several  States  and  Territories  of  the 
United  States,  or  between  the  United  States  and  adjacent  foreign  countries, 
or  between  ports  of  transshipment  and  of  entry  and  the  several  States  and 
Territories  of  the  United  States,  as  mentioned  in  the  first  section  of  this 
act,  until  such  common  carrier  shall  have  complied  with  the  aforesaid  pro- 
visions of  this  section  of  this  act. 

As  amended  by  sec.  1  of  act  of  March  2,  1889. 

Sec.  7.  That  it  shall  be  unlawful  for  any  common  carrier  subject  to  the 
provisions  of  this  act  to  enter  into  any  combination,  contract,  or  agreement, 
expressed  or  implied,  to  prevent,  by  change  of  time  schedule,  carriage  in 
different  cars,  or  by  other  means  or  devices,  the  carriage  of  freights  from 
being  continuous  from  the  place  of  shipment  to  the  place  of  destination; 
and  no  break  of  bulk,  stoppage,  or  interruption  made  by  such  common  car- 
rier shall  prevent  the  carriage  of  freights  from  being  and  being  treated  as 
one  continuous  carriage  from  the  place  of  shipment  to  the  place  of  destina- 
tion, unless  such  break,  stoppage,  or  interruption  was  made  in  good  faith 
for  some  necessary  purpose,  and  without  any  intent  to  avoid  or  unneces- 
sarily interrupt  such  continuous  carriage  or  to  evade  any  of  the  provisions 
of  this  act. 

Skc.  8,  That  in  case  any  common  carrier  subject  to  the  provisions  of 
this  act  sliall  do,  cause  to  be  done,  or  permit  to  be  done,  any  act,  matter,  or 
thing  in  this  act  prohibited  or  declared  to  be  unlawful,  or  shall  omit  to  do 
any  act,  matter,  or  thing  in  this  act  required  to  be  done,  such  common  car- 
rier shall  be  liable  to  the  person  or  persons  injured  thereby  for  the  full 
amount  of  damages  sustained  in  consequence  of  any  such  violation  of  the 
provi.sions  of  this  act,  together  with  a  reasonable  counsel  or  attorney's  fee, 
to  be  fixed  by  the  court  in  every  case  of  recovery  which  attorney's  fee  shall 
be  taxed  and  collected  as  part  of  the  costs  in  the  case. 

Skc.  9.  That  any  person  or  porsons  claiming  to  be  damaged  by  any  com- 
mon carrier  subject  to  the  provisions  of  tliis  act  may  eitlier  make  complaint 
V>  the  Commission  as  liereinafter  j)rovi(led  for.  or  may  bring  suit  in  his  or 
their  own  Ixjlialf  for  tlie  recovery  of  the  damages  for  which  such  common 
carrier  may  be  liable  under  the  provisions  of  this  act,  in  any  district  or  cir- 
cuit  court  of  the  United  States  of  competent  juri.sdiction  ;  but  such  person 
or  r>er8on8  shall  not  have  the  right  to  pursue  both  of  said  remedies,  and 
mujit  in  each  ca»e  elect  which  one  of  the  two  methods  of  procedure  herein 
provided  for  he  or  they  will  adopt. 

In  any  such  action  brought  for  the  recovery  of  damages  the  court  before 
which  tlie  same  hhall  be  pending  may  compel  any  director,  olFicer,  receiver, 


APPENDIX.  729 

trustee  or  agent  of  the  corporation  or  company  defendant  in  such  suit  to 
attend,  appear,  and  testify  in  such  case,  and  may  compel  the  production  of 
the  books  and  papers  of  such  corporation  or  company  party  to  any  such 
suit  ;  the  claim  that  any  such  testimony  or  evidence  may  tend  to  criminate 
the  person  giving  such  evidence  shall  not  excuse  such  witness  from  testi- 
fying, but  such  evidence  or  testimony  shall  not  be  used  against  such  person 
on  the  trial  of  any  criminal  proceeding. 

Sec.  10.  That  any  common  carrier  subject  to  the  provisions  of  this  act, 
or,  whenever  such  common  carrier  is  a  corporation,  any  director  or  officer 
thereof,  or  any  receiver,  trustee,  lessee,  agent,  or  person,  acting  for^  or 
employed  by  such  corporation,  who,  alone  or  with  any  other  corporation, 
company,  person,  or  party,  shall  wilfully  do  or  cause  to  be  done,  or  shall 
willingly  suffer  or  permit  to  be  done,  any  act,  matter,  or  thing  in  this  act 
prohibited  or  declared  to  be  unlawful,  or  who  shall  aid  or  abet  therein,  or 
shall  wilfully  omit  or  fail  to  do  any  act,  matter,  or  thing  in  this  act  re- 
quired to  be  done,  or  shall  cause  or  willingly  suffer  or  permit  any  act,  mat- 
ter, or  thing  so  directed  or  required  by  this  act  to  be  done  not  to  be  so  done, 
or  shall  aid°  or  abet  any  such  omission  or  failure,  or  shall  be  guilty  of  any 
infraction  of  this  act,  or  shall  aid  or  abet  therein,  shall  be  deemed  guilty  of 
a  misdemeanor,  and  shall,  upon  conviction  thereof  in  any  district  court  of 
the  United  States,  within  the  jurisdiction  of  which  such  offence  was  com- 
mitted, be  subject  to  a  fine  of  not  to  exceed  five  thousand  dollars  for  each 
offence : 

Provided,  That  if  the  offence  for  which  any  person  shall  be  convicted  as 
aforesaid  shall  be  an  unlawful  discrimination  in  rates,  fares,  or  charges, 
for  the  transportation  of  passengers  or  property,  such  person  shall,  in  addi- 
tion to  the  fine  hereinbefore  provided  for,  be  liable  to  imprisonment  in  the 
penitentiary  for  a  term  of  not  exceeding  two  years,  or  both  such  fine  and 
imprisonment,  in  the  discretion  of  the  court. 

Any  common  carrier  subject  to  the  provisions  of  this  act,  or,  whenever 
such  common  carrier  is  a  corporation,  any  officer  or  agent  thereof,  or  any 
person  acting  for  or  employed  by  such  corporation,  who,  by  means  of  false 
billing,  false  classification,  false  weighing,  or  false  report  of  weight,  or  by 
any  other  device  or  means,  shall  knowingly  and  wilfully  assist,  or  shall 
willingly  suffer  or  permit,  any  person  or  persons  to  obtain  transportation 
for  property  at  less  than  the  regular  rates  then  established  and  in  force  on 
the  line  of  transportation  of  such  common  carrier,  shall  be  deemed  guilty 
of  a  misdemeanor,  and  shall,  upon  conviction  thereof  in  any  court  of  the 
United  States  of  competent  jurisdiction  within  the  district  in  which  such 
offence  was  committed,  be  subject  to  a  fine  of  not  exceeding  five  thousand 
dollars  or  imprisonment  in  the  penitentiary  for  a  term  of  not  exceeding  two 
years,  or  both,  in  the  discretion  of  the  court,  for  each  offence. 

Any  person  and  any  officer  or  agent  of  any  corporation  or  company  who 
shall  deliver  property  for  transportation  to  any  common  carrier,  subject  to 
the  provisions  of  this  act,  or  for  whom  as  consignor  or  consignee  any  such 
carrier  shall  transport  property,  who  shall  knowingly  and  wilfully,  by  false 
billing,  false  classification,  false  weighing,  false  representation  of  the  con- 
tents of  the  package,  or  false  report  of  weight,  or  by  any  other  device  or 
means,  whether  with  or  without  the  consent  or  connivance  of  the  carrier, 
its  agent  or  agents,  obtain  transportation  for  such  property  at  less  than  the 
regular  rates  then  established  and  in  force  on  the  line  of  transportation, 
shall  be  deemed  guilty  of  fraud,  which  is  hereby  declared  to  be  a  misde- 


730  APPENDIX. 

meauor,  and  shall,  upon  conviction  thereof  in  any  court  of  the  United 
States  of  competent  jurisdiction  within  the  district  in  which  such  offence 
was  committed,  be  subject  for  each  offence  to  a  fine  of  not  exceeding  five 
thousand  dollars  or  imprisonment  in  the  penitentiary  for  a  term  of  not  ex- 
ceediug  two  years,  or  both,  in  the  discretion  of  the  court. 

If  any  such  person,  or  any  officer  or  agent  of  any  such  corporation  or 
company,  shall,  by  payment  of  money  or  other  thing  of  value,  solicitation  or 
otherwise,  induce  any  common  carrier  subject  to  the  provisions  of  this  act, 
or  any  of  its  ofKcers  or  agents,  to  discriminate  unjustly  in  his,  its,  or  their 
favor  as  against  any  other  consignor  or  consignee  in  the  transportation  of 
property,  or  shall  aid  or  abet  any  common  carrier  in  any  such  unjust  dis- 
crimination, such  person,  or  such  officer  or  agent  of  such  corporation  or 
company,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall,  upon  convic- 
tion thereof  in  any  court  of  the  United  States  of  competent  jurisdiction 
within  the  district  in  which  such  offence  was  committed,  be  subject  to  a 
fine  of  not  exceeding  five  thousand  dollars,  or  imprisonment  in  the  peniten- 
tiary for  a  term  of  not  exceeding  two  years,  or  both,  in  the  discretion  of 
the  court,  for  each  offence ;  and  such  person,  corporation,  or  comjiany  shall, 
also,  together  with  said  common  carrier,  be  liable,  jointly,  or  severally,  in 
an  action  on  the  case  to  be  brought  by  any  consignor  or  consignee  discrim- 
inated against  in  any  court  of  the  United  States  of  competent  jurisdiction 
for  all  damages  caused  by  or  resulting  therefrom. 

As  amended  by  sec.  2,  act  of  ]\Iarch  2,  1SS9. 

Sec.  11.  That  a  Commission  is  hereby  created  and  established  to  be  known 
as  the  Interstate  Commerce  Commission,  which  shall  be  composed  of  five  Com- 
missioners, who  shall  be  appointed  by  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate. 

The  Commissioners  first  appointed  under  this  act  shall  continue  in  office  for 
the  term  of  two,  three,  four,  five,  and  six  years,  respectively,  from  the  first  day 
of  January,  Anno  Domini  eighteen  hundred  and  eighty-seven,  the  term  of 
each  to  be  designated  by  the  President ;  but  their  successors  shall  be  appointed 
for  terms  of  six  years,  except  that  any  person  chosen  to  fill  a  vacancy  shall  be 
appointed  only  for  the  unexpired  term  of  the  Commissioner  whom  he  shall 
succeed. 

Any  Commissioner  may  be  removed  by  the  President  for  inefficiency, 
neglect  of  duty,  or  malfeasance  in  office.  Not  more  than  three  of  the  Com- 
missioners shall  be  appointed  from  the  same  political  party. 

No  person  in  the  employ  of  or  holding  any  official  relation  to  any  common 
carrier  subjt.-ct  to  the  provisions  of  this  act,  or  owning  stock  or  bonds  thereof, 
or  who  is  in  any  manner  pecuniarily  interested  therein,  shall  enter  upon  the 
duties  of  or  hold  such  office.  Said  Commissioners  shall  not  engage  in  any 
other  business,  vocation,  or  employment. 

No  vacancy  in  the  Commission  shall  impair  the  right  of  the  remaining  Com- 
mUsioners  to  exercise  all  the  powers  of  tht^  Commission. 

Skc.  12.  That  the  Commission  hereby  created  shall  have  authority  to 
inquire  into  the  management  of  tlie  business  of  all  common  carriers  subject  to 
the  provisions  of  this  sict,  and  shall  keep  itself  informed  as  to  the  manner  and 
method  in  which  the  same  is  conducted,  and  shall  have  the  right  to  obtain  from 
Huch  common  carriers  full  and  complete  information  necessary  to  enable  the 
CommisHion  to  jx-rform  the  duties  and  carry  out  the  objects  for  which  it  was 
creat'.'d  ; 


APPENDIX.  731 

And  the  Commission  is  hereby  authorized  and  required  to  execute  and 
enforce  the  provisions  of  this  act ; 

And,  upon  the  request  of  the  Commission,  it  shall  be  the  duty  of  any  district 
attorney  of  the  United  States  to  whom  the  Commission  may  apply  to  institute 
in  the  proper  court  and  to  prosecute  under  the  direction  of  the  Attorney- 
General  of  the  United  States  all  necessary  proceedings  for  the  enforcement  of 
the  provisions  of  this  act  and  for  the  punishment  of  all  violations  thereof, 
and  the  costs  and  expenses  of  such  prosecution  shall  be  paid  out  of  the  appro- 
priation for  the  expenses  of  the  courts  of  the  United  States; 

And  for  the  purposes  of  this  act  the  Commission  shall  have  power  to  require, 
by  subpoena,  the  attendance  and  testimony  of  witnesses  and  the  production  of 
all  books,  papers,  tariffs,  contracts,  agreements,  and  documents  relating  to  any 
matter  under  investigation. 

Such  attendance  of  witnesses,  and  the  production  of  such  documentary 
evidence,  may  be  required  from  any  place  in  the  United  States,  at  any  desig- 
nated place  of  hearing. 

And  in  case  of  disobedience  to  a  subpcena  the  Commission,  or  any  party  to 
a  proceeding  before  the  Commission,  may  invoke  the  aid  of  any  court  of  the 
United  States  in  requiring  the  attendance  and  testimony  of  witnesses  and 
the  production  of  books,  papers,  and  documents  under  the  provisions  of  this 
section. 

And  any  of  the  circuit  courts  of  the  United  States  within  the  jurisdiction 
of  which  such  inquiry  is  carried  on  may,  in  case  of  contumacy  or  refusal  to 
obey  a  subpcena  issued  to  any  common  carrier  subject  to  the  provisions  of  this 
act,  or  other  person,  issue  an  order  requiring  such  common  carrier  or  other 
person  to  appear  before  said  Commission  (and  produce  books  and  papers  if  so 
ordered)  and  give  evidence  touching  the  matter  in  question; 

And  any  failure  to  obey  such  order  of  the  court  may  be  punished  by  such 
court  as  a  contempt  thereof. 

The  claim  that  any  such  testimony  or  evidence  may  tend  to  criminate  the 
person  giving  such  evidence  shall  not  excuse  such  witness  from  testifying;  but 
such  evidence  or  testimony  shall  not  be  used  against  such  person  on  the  trial 
of  any  criminal  proceeding.     [See  later  act  on  p.  738.] 

The  testimony  of  any  witness  may  be  taken,  at  the  instance  of  a  party,  in 
any  proceeding  or  investigation  depending  before  the  Commission,  by  deposi- 
tion, at  any  time  after  a  cause  or  proceeding  is  at  issue  on  petition  and  answer. 
The  Commission  may  also  order  testimony  to  be  taken  by  deposition  in  any 
proceeding  or  investigation  pending  before  it,  at  any  stage  of  such  proceeding 
or  investigation. 

Such  depositions  may  be  taken  before  any  judge  of  any  court  of  the  United 
States,  or  any  commissioner  of  a  circuit,  or  any  clerk  of  a  district  or  circuit 
court,  or  any  chancellor,  justice  or  judge  of  a  supreme  or  superior  court,  mayor 
or  chief  magistrate  of  a  city,  judge  of  a  county  court,  or  court  of  common  pleas 
of  any  of  the  United  States,  or  any  notary  public,  not  being  of  counsel  or 
attorney  to  either  of  the  parties,  nor  interested  in  the  event  of  the  proceeding 
or  investigation. 

Reasonable  notice  must  first  be  given  in  writing  by  the  party  or  his  attorney 
proposing  to  take  such  deposition  to  the  opposite  party  or  his  attorney  of 
record,  as  either  may  be  nearest,  which  notice  shall  state  the  name  of  the  wit- 
ness and  the  time  and  place  of  the  taking  of  his  deposition. 

Any  person  may  be  compelled  to  appear  and  depose,  and  to  produce  docu- 
mentary evidence,  in  the  same  manner  as  witnesses  may  be  compelled  to  appear 


732  APPENDIX. 

and  testify  and  produce  documentary  evidence  before  the  Commission  as 
hereinbefore  provided. 

Everv  person  deposing  as  herein  provided  shall  be  cautioned  and  sworn  (or 
affirm,  if  he  so  request)  to  testify  the  whole  truth,  and  shall  be  carefully 
examined.  His  testimony  shall  be  reduced  to  writing  by  the  magistrate  taking 
the  deposition,  or  under  his  direction,  and  shall,  after  it  has  been  reduced  to 
writing,  be  subscribed  by  the  deponent. 

If  a  witness  whose  testimony  may  be  desired  to  be  taken  by  deposition  be 
in  a  foreign  country,  the  deposition  may  be  taken  before  an  officer  or  person 
designated  by  the  Commission,  or  agreed  upon  by  the  parties  by  stipulation  in 
writing  to  be  filed  with  the  Commission. 

All  depositions  must  be  promptly  filed  with  the  Commission. 
^Vitnesses  whose  depositions  are  taken  pursuant  to  this  act.  and  the  magis- 
trate or  other  officer  taking  the  same,  sliall  severally  be  entitled  to  the  same 
fees  as  are  paid  for  like  services  in  the  courts  of  the  United  States. 
As  amended  by  act  of  February  10,  1891. 

Sec.  13.  That  any  person,  firm,  corporation,  or  association,  or  any  mer- 
cantile, agricultural,  or  manufacturing  society,  or  any  body  politic  or  municipal 
organization  complaining  of  anything  done  or  omitted  to  be  done  by  any  com- 
mon carrier  subject  to  the  provisions  of  this  act  in  contravention  of  the  pro- 
visions thereof,  may  apply  to  said  Commission  by  petition,  which  shall  briefly 
state  the  facts ; 

Whereupon  a  statement  of  the  charges  thus  made  shall  be  forwarded  by 
the  Commission  to  such  common  carrier,  who  shall  be  called  upon  to  satisfy 
the  complaint  or  to  answer  the  same  in  writing  within  a  reasonable  time,  to  be 
specified  by  the  Commission.  If  such  common  carrier,  within  the  time  speci- 
fied, shall  make  reparation  for  the  injury  alleged  to  have  been  done,  said 
carrier  shall  be  relieved  of  liability  to  the  complainant  only  for  the  particular 
violation  of  law  thus  complained  of. 

If  such  carrier  shall  not  satisfy  the  complaint  within  the  time  specified,  or 
there  shall  appear  to  be  any  reasonable  ground  for  investigating  said  complaint, 
it  shall  be  the  duty  of  the  Commission  to  investigate  the  matters  complained 
of  in  such  manner  and  by  such  means  as  it  shall  deem  proper. 

Said  Commission  shall  in  like  manner  investigate  any  complaint  forwarded 
by  the  railroad  commissioner  or  railroad  commission  of  any  State  or  Territory, 
at  the  request  of  such  commissioner  or  commission,  and  may  institute  any 
inquiry  on  its  own  motion  in  the  same  manner  and  to  the  .same  efi'ect  as 
though  complaint  had  been  made. 

No  complaint  shall  at  any  time  be  dismissed  because  of  the  absence  of 
direct  damage  to  the  complainant. 

Sec.  14.  That  whenever  an  investigation  shall  be  made  by  said  Commis- 
fiion,  it  shall  be  its  duty  to  make  a  report  in  writing  in  respect  thereto,  which 
«hail  include  the  findings  of  fact  upon  which  the  conclusions  of  the  Coramis- 
Hion  are  ba.sed  together  with  its  recommendation  as  to  wiiat  reparation,  if  any, 
should  be  made  by  the  common  carrier  to  any  party  or  parties  who  may  be 
foiinfl  to  have  been  injured;  and  such  findings  so  made  shall  thereafter,  in  all 
judicial  proceedings,  be  deemed  prima  facie  evidence  as  to  each  and  every 
fact  found. 

All  rei>orts  of  investigations  made  by  the  Commission  .shall  be  entered  of 
record,  and  a  copy  thereof  sliall  be  furnished  to  the  j'arty  who  may  liave  com- 
plained, and  to  any  common  carrier  that  may  have  been  complained  of. 

The  Commission  may  provide  for  the  publication  of  its  reports  and  deci- 


APPENDIX.  733 

sions  in  such  form  and  manner  as  may  be  best  adapted  for  public  information 
and  use,  and  such  authorized  publications  shall  be  competent  evidence  of  the 
reports  and  decisions  of  the  Commission  therein  contained,  in  all  courts  of  the 
United  States,  and  of  the  several  States,  without  any  further  proof  or  authen- 
tication thereof.  The  Commission  may  also  cause  to  be  printed  for  early 
distribution  its  annual  reports. 

As  amended  by  sec.  4  of  act  of  March  2,  1889. 

Sec.  15.  That  if  in  any  case  in  vphich  an  investigation  shall  be  made  by 
said  Commission  it  shall  be  made  to  appear  to  the  satisfaction  of  the  Commis- 
sion, either  by  the  testimony  of  witnesses  or  other  evidence,  that  anything  has 
been  done  or  omitted  to  be  done  in  violation  of  the  provisions  of  this  act,  or  of 
any  law  cognizable  by  said  Commission,  by  any  common  carrier,  or  that  any 
injury  or  damage  has  been  sustained  by  the  party  or  parties  complaining,  or 
by  other  parties  aggrieved  in  consequence  of  any  such  violation,  it  shall  be  the 
duty  of  the  Commission  to  forthwith  cause  a  copy  of  its  report  in  respect 
thereto  to  be  delivered  to  such  common  carrier,  together  with  a  notice  to 
said  common  carrier  to  cease  and  desist  from  such  violation,  or  to  make 
reparation  for  the  injury  so  found  to  have  been  done,  or  both,  within  a  reason- 
able time,  to  be  specified  by  the  Commission  ; 

And  if,  within  the  time  specified,  it  shall  be  made  to  appear  to  the  Com- 
mission that  such  common  carrier  has  ceased  from  such  violation  of  law,  and 
has  made  reparation  for  the  injury  found  to  have  been  done,  in  compliance 
with  the  report  and  notice  of  the  Commission,  or  to  the  satisfaction  of  the 
party  complaining,  a  statement  to  that  effect  shall  be  entered  of  record  by  the 
Commission,  and  the  said  common  carrier  shall  thereupon  be  relieved  from 
further  liability  or  penalty  for  such  particular  violation  of  law. 

Sec.  16.  That  whenever  any  common  carrier,  as  defined  in  and  subject  to 
the  provisions  of  this  act,  shall  violate,  or  refuse  or  neglect  to  obey  or  perform 
any  lawful  order  of  requirement  of  the  Commission  created  by  this  act,  not 
founded  upon  a  controversy  requiring  a  trial  by  jury,  as  provided  by  the 
seventh  amendment  to  the  Constitution  of  the  United  States,  it  shall  be  lawful 
for  the  Commission  or  for  any  company  or  person  interested  in  such  order  or 
requirement,  to  apply  in  a  summary  way,  by  petition,  to  the  circuit  court  of 
the  United  States  sitting  in  equity  in  the  judicial  district  in  which  the  common 
carrier  complained  of  has  its  principal  office,  or  in  which  the  violation  or  dis- 
obedience of  such  order  or  requirement  shall  happen,  alleging  such  violation  or 
disobedience,  as  the  case  may  be  ; 

And  the  said  court  shall  have  power  to  hear  and  determine  the  matter,  on 
such  short  notice  to  the  common  carrier  complained  of  as  the  court  shall  deem 
reasonable ;  and  such  notice  may  be  served  on  such  common  carrier,  his  or  its 
officers,  agents,  or  servants,  in  such  manner  as  the  court  shall  direct ; 

And  said  court  shall  proceed  to  hear  and  determine  the  matter  speedily  as 
a  court  of  equity,  and  without  the  formal  pleadings  and  proceedings  applicable 
to  ordinary  suits  in  equity,  but  in  such  manner  as  to  do  justice  in  the  premises; 
and  to  this  end  such  court  shall  have  power,  if  it  think  fit  to  direct  and  prose- 
cute in  such  mode  and  by  such  persons  as  it  may  appoint,  all  such  inquiries  as 
the  court  may  think  needful  to  enable  it  to  form  a  just  judgment  in  the  matter 
of  such  petition ; 

And  on  such  hearing  the  findings  of  fact  in  the  report  of  said  Commission 
shall  be  prima  facie  evidence  of  the  matters  therein  stated  ;  and  if  it  be  made 
to  appear  to  such  court,  on  such  hearing  or  on  report  of  any  such  person  or 
persons,  that  the  lawful  order  or  requirement  of  said  Commission  drawn  in 


734  APPENDIX. 

question  has  been  violated  or  disobeyed,  it  shall  be  lawful  for  such  court  to 
issue  a  writ  of  injunction  or  other  proper  process,  mandatory  or  otlierwise.  to 
restrain  such  common  carrier  from  further  continuing  such  violation  or  dis- 
obedience of  such  order  or  requirement  of  said  Commission,  and  enjoiniag 
obedience  to  the  same ; 

And  in  case  of  any  disobedience  of  any  such  -nrit  of  injunction  or  other 
proper  process,  mandatory  or  otherwise,  it  shall  be  lawful  for  such  court  to 
Issue  writs  of  attachment,  or  any  other  process  of  said  court  incident  or  appli- 
cable to  writs  of  injunction  or  other  proper  process,  mandatory  or  otherwise. 
against  such  common  carrier,  and  if  a  corporation,  against  one  or  more  of  the 
directors,  officers,  or  agents  of  the  same,  or  against  any  owner,  lessee,  trustee, 
receiver,  or  other  person  failing  to  obey  such  writ  of  injunction,  or  other 
proper  process,  mandatory  or  otherwise;  and  said  court  may,  if  it  shall  think 
fit,  make  an  order  directing  such  common  carrier  or  other  person  so  disobeying 
such  writ  of  injunction  or  other  proper  process,  mandatory  or  otherwise,  to 
pay  such  sum  of  money,  not  exceeding  for  each  carrier  or  person  in  default  the 
sum  of  five  hundred  dollars  for  every  day,  after  a  day  to  be  named  in  the 
order,  that  such  carrier  or  other  person  shall  fail  to  obey  such  injunction  or 
other  proper  process,  mandatory  or  otherwise ;  and  such  moneys  shall  be  pay- 
able as  the  court  shall  direct,  either  to  the  party  complaining  or  into  court,  to 
abide  the  ultimate  decision  of  the  court,  or  into  the  Treasury;  and  payment 
thereof  may,  without  prejudice  to  any  other  mode  of  recovering  the  same,  be  en- 
forced by  attachment  or  order  in  the  nature  of  a  writ  of  execution,  in  like  manner 
as  if  the  same  had  been  recovered  by  a  final  decree  in  personam  in  such  court. 

When  the  subject  in  dispute  shall  be  of  the  value  of  two  thousand  dollars 
or  more,  either  party  to  such  proceeding  before  said  court  may  appeal  to  the 
Supreme  Court  of  the  United  States,  under  the  same  regulations  now  provided 
by  law  in  respect  of  security  for  such  appeal ;  but  such  appeal  shall  not  operate 
to  stay  or  supersede  the  order  of  the  court  or  the  execution  of  any  writ  or 
process  thereon;  and  such  court  may,  in  every  such  matter,  order  the  payment 
of  such  costs  and  counsel  fees  as  shall  be  deemed  reasonable; 

Whenever  any  such  petition  shall  be  filed  or  presented  by  the  Commission 
it  shall  be  the  duty  of  the  district  attorney,  under  the  direction  of  the  Attorney- 
General  of  the  United  States,  to  pro.secute  the  same  ;  and  the  costs  and  expenses 
of  such  i)rosecution  .shall  be  paid  out  of  the  appropriation  for  the  expenses  of 
the  courts  of  the  United  States. 

If  the  matters  involved  in  any  such  order  or  requirement  of  said  Commis- 
sion are  founded  upon  a  controversy  requiring  a  trial  by  jury,  as  provided 
by  the  seventh  amendment  to  the  Constitution  of  the  United  States,  and  any 
such  common  carrier  shall  violate  or  refuse  or  neglect  to  obey  or  perform  the 
same,  after  notice  given  by  said  Commi.ssion  as  provided  in  the  fifteenth  section 
of  this  act,  it  shall  be  lawful  for  any  company  or  person  interested  in  such 
ordffr  or  requirement  to  apply  in  a  summary  way  by  ]>etition  to  the  circuit 
court  of  the  United  States  sitting  as  a  court  of  law  in  the  judicial  district  in 
which  the  carrier  complained  of  has  its  principal  office,  or  in  which  tiie  viola- 
tion or  disobedience  of  such  order  or  requirement  shall  happen,  alleging  such 
violation  or  disobedience,  as  the  case  may  be ;  and  said  court  shall  by  its  order 
then  fix  a  time  and  place  for  the  trial  of  said  cause,  whicii  shall  not  be  less 
than  twenty  nor  more  than  forty  days  from  the  time  said  order  is  made,  and 
it  shall  be  the  duty  of  the  marshal  of  the  district  in  wliich  said  proceeding  is 
pending  to  forthwith  serve  a  copy  of  said  pi-tition,  and  of  said  order,  upon 
each  of  the  defendants,  and  it  shall  be  the  duty  of  the  defendants  to  file  their 


APPENDIX.  735 

answers  to  said  petition  within  ten  days  after  the  service  of  the  same  upon 
them  as  aforesaid. 

At  the  trial  of  the  findings  of  fact  of  said  Commission  as  set  forth  in  its 
report  shall  be  prima  facie  evidence  of  the  matters  therein  stated,  and  if  either 
party  shall  demand  a  jury  or  shall  omit  to  waive  a  jury  the  court  shall,  by  its 
order,  direct  the  marshal  forthwith  to  summon  a  jury  to  try  the  cause; 

But  if  all  the  parties  shall  waive  a  jury  in  writing,  then  the  court  shall  try 
the  issues  in  said  cause  and  render  its  judgment  thereon. 

If  the  subject  in  dispute  shall  be  of  the  value  of  two  thousand  dollars  or 
more  either  party  may  appeal  to  the  Supreme  Court  of  the  United  States  under 
the  same  regulations  now  provided  by  law  in  respect  to  security  for  such 
appeal ;  but  such  appeal  must  be  taken  within  twenty  days  from  the  day  of 
the  rendition  of  the  judgment  of  said  circuit  court. 

If  the  judgment  of  the  circuit  court  shall  be  in  favor  of  the  party  complain- 
ing, he  or  they  shall  be  entitled  to  recover  a  reasonable  counsel  or  attorney's 
fee,  to  be  fixed  by  the  court,  which  shall  be  collected  as  part  of  the  costs  in 
the  case. 

For  the  purposes  of  this  act,  excepting  its  penal  provisions,  the  circuit  courts 
of  the  United  States  shall  be  deemed  to  be  always  in  session. 

As  amended  by  sec.  5  of  act  of  March  2,  1889. 

Sec.  17.  That  the  Commission  may  conduct  its  proceedings  in  such  manner 
as  will  best  conduce  to  the  proper  despatch  of  business  and  to  the  ends  of 
justice.  A  majority  of  the  Commission  shall  constitute  a  quorum  for  the 
transaction  of  business,  but  no  Commissioner  shall  participate  in  any  hearing 
or  proceeding  in  which  he  has  any  pecuniary  interest.  Said  Commission  may, 
from  time  to  time,  make  or  amend  such  general  rules  or  orders  as  may  be 
requisite  for  the  order  and  regulation  of  proceedings  before  it,  including  forms 
of  notices  and  the  service  thereof,  which  shall  conform,  as  nearly  as  may  be, 
to  those  in  use  in  the  courts  of  the  United  States.  Any  party  may  appear 
before  said  Commission  and  be  heard,  in  person  or  by  attorney. 

Every  vote  and  official  act  of  the  Commission  shall  be  entered  of  record,  and 
its  proceedings  shall  be  public  upon  the  request  of  either  party  interested. 

Said  Commission  shall  have  an  official  seal,  which  shall  be  judicially  noticed. 

Either  of  the  members  of  the  Commission  may  administer  oaths  and  affir- 
mations and  sign  subpoenas. 

As  amended  by  sec.  6  of  act  of  March  2,  1889. 

Sec.  18.  That  each  Commissioner  shall  receive  an  annual  salary  of  seven 
thousand  five  hundred  dollars,  payable  in  the  same  manner  as  the  judges  of 
the  courts  of  the  United  States. 

The  Commission  shall  appoint  a  secretary,  who  shall  receive  an  annual 
salary  of  three  thousand  five  hundred  dollars,  payable  in  like  manner.  The 
Commission  shall  have  authority  to  employ  and  fix  the  compensation  of  such 
other  employees  as  it  may  find  necessary  to  the  proper  performance  of  its  duties. 

Until  otherwise  provided  by  law,  the  Commission  may  hire  suitable 
offices  for  its  use,  and  shall  have  authority  to  procure  all  necessary  office 
supplies. 

Witnesses  summoned  before  the  Commission  shall  be  paid  the  same  fees 
and  mileage  that  are  paid  witnesses  in  the  courts  of  the  United  States. 

All  of  the  expenses  of  the  Commission,  including  all  necessary  expenses 
for  transportation  incurred  by  the  Commissioners,  or  by  their  employees 
under  their  orders,  in  making  any  investigation,  or  upon  official  business  in 
any  other  places  than  in  the  City  of  Washington,  shall  be  allowed  and  paid 


736  APPENDIX. 

on  the  presentation  of  itemized  vouchers  therefor  approved  by  the  chair- 
man of  the  Commission. 

As  amended  bv  sec.  7,  act  of  March  2,  1SS9. 

Sec.  19.  That  the  principal  office  of  the  Commission  shall  be  in  the  city 
of  Washington,  where  its  general  sessions  shall  be  held ;  but  whenever 
the  convenience  of  the  public  or  of  the  parties  may  be  promoted  or  delay 
or  expense  prevented  thereby,  the  Commission  may  hold  special  sessions 
in  any  part  of  the  United  States. 

It  may,  by  one  or  more  of  the  Commissioners,  prosecute  any  inquiry 
necessary  to  its  duties,  in  any  part  of  the  United  States,  into  any  matter  or 
question  of  fact  pertaining  to  the  business  of  any  common  carrier  subject 
to  the  provisions  of  this  act. 

Sec.  20.  That  the  Commission  is  hereby  authorized  to  require  annual 
reports  from  all  common  carriers  subject  to  the  provisions  of  this  act,  to 
fix  the  time  and  prescribe  the  manner  in  which  such  reports  shall  be  made, 
and  to  require  from  such  carriers  specific  answers  to  all  questions  upon 
which  the  Conimission  may  need  information. 

Such  annual  reports  shall  show  in  detail  — 

The  amount  of  capital  stock  issued; 

The  amounts  paid  therefor,  and  the  manner  of  payment  for  the  same ; 

The  dividends  paid,  the  surplus  fund,  if  any,  and  the  number  of  stock- 
holders ; 

The  funded  and  floating  debts  and  the  interest  paid  thereon; 

The  cost  and  value  of  the  carrier's  property,  franchises,  and  equipment; 

The  number  of  employees  and  the  salaries  paid  each  class; 

The  amounts  expended  for  improvements  each  year,  how  expended,  and 
the  character  of  such  improvements; 

The  earnings  and  receipts  from  each  branch  of  business  and  from  all 
sources ; 

The  operating  and  other  expenses; 

The  balances  of  profit  and  loss; 

And  a  complete  exhibit  of  the  financial  operations  of  the  carrier  each 
year, 

Including  an  annual  balance-sheet. 

Such  reports  shall  also  contain  such  information  in  relation  to  rates  or 
regulations  concerning  fares  or  freights,  or  agreements,  arrangements,  or 
contracts  with  other  common  carriers,  as  the  Commission  may  require; 

And  the  said  Commission  may,  within  its  discretion,  for  the  purpose  of 
enabling  it  the  better  to  carry  out  the  purposes  of  this  act,  prescribe  (if  in 
the  opinion  of  the  Commission  it  is  practicable  to  prescribe  such  uniform- 
ity and  methods  of  keeping  accounts)  a  period  of  time  within  which  all 
common  carriers  subject  to  the  provisions  of  this  act  shall  have,  as  near  as 
may  be,  a  uniform  system  of  accounts,  and  the  manner  in  which  such  ac- 
counts shall  be  kept. 

Sec.  21.  That  the  Commi-ssion  shall,  on  or  before  the  first  day  of  De- 
cember in  each  year,  make  a  report,  which  shall  be  transmitted  to  Congress, 
and  copies  of  which  shall  be  distributed  as  are  the  other  reports  trans- 
mitted to  Congress. 

This  report  shall  contain  such  information  and  data  collected  by  the 
Commission  a.s  may  be  considered  of  value  in  the  determination  of  ques- 
tioii  d   with  th<'   regtdation   of   commerce,  together  with  .such  rec- 

omv  .   as  to  additional  legi-slation    relating  thereto  as  the    Commis- 


APPENDIX.  737 

sioii  may  deem  necessary;  and  the  names  and  compensation  of  the  persons 
employed  by  said  Commission. 

As  amended  by  sec.  S,  act  of  March  2,  1889. 

Sec  22.  That  nothing  in  this  act  shall  prevent  the  carriage,  storage,  or 
handling  of  property  free  or  at  reduced  rates 

For  the  United  States,  State,  or  municipal  governments, 

Or  for  charitable  purposes, 

Or  to  or  from  fairs  and  expositions  for  exhibition  thereat, 

Or  the  free  carriage  of  destitute  and  homeless  persons  transported  by 
charitable  societies, 

And  the  necessary  agents  employed  in  such  transportation. 

Or  the  issuance  of  mileage,  excursion,  or  commutation  passenger  tickets; 

Nothing  in  this  act  shall  be  construed  to  prohibit  any  common  carrier 
from  giving  reduced  rates  to  ministers  of  religion, 

Or  to  municipal  governments  for  the  transportation  of  indigent  persons, 

Or  to  inmates  of  the  National  Homes  or  State  Homes  for  Disabled 
Volunteer  Soldiers  and  of  Soldiers'  and  Sailors'  Orphan  Homes,  including 
those  about  to  enter  and  those  returning  home  after  discharge,  under  ar- 
rangements with  the  boards  of  managers  of  said  homes. 

Nothing  in  this  act  shall  be  construed  to  prevent  railroads  from  giving 
free  carriage  to  their  own  officers  and  employees, 

Or  to  prevent  the  principal  officers  of  any  railroad  company  or  companies 
from  exchanging  passes  or  tickets  with  other  railroad  companies  for  their 
officers  and  employees; 

And  nothing  in  this  act  contained  shall  in  any  way  abridge  or  alter  the 
remedies  now  existing  at  common  law  or  by  statute,  but  the  provisions  of 
this  act  are  in  addition  to  such  remedies: 

Provided,  That  no  pending  litigation  shall  in  any  way  be  affected  by  this 
act. 

As  amended  by  sec.  9,  act  of  March  2,  1SS9. 

ACT   OF   MARCH  2,   1889. 
(25    Stat,   at   Large,    855.) 

Sec.  10.  That  the  circuit  and  district  courts  of  the  United  States  shall 
have  jurisdiction  upon  the  relation  of  any  person  or  persons,  firm,  or  cor- 
poration, alleging  such  violation  by  a  common  carrier,  of  any  of  the  pro- 
visions of  the  act  to  which  this  is  a  supplement  and  all  acts  amendatory 
thereof,  as  prevents  the  relator  from  having  intei-state  traffic  moved  by 
said  common  carrier  at  the  same  rates  as  are  charged,  or  upon  terms  or 
conditions  as  favorable  as  those  given  by  said  common  carrier  for  like  traf- 
fic under  similar  conditions  to  any  other  shipper,  to  issue  a  writ  or  writs  of 
mandamus  against  said  common  carrier  commanding  such  common  carrier 
to  move  and  transport  the  traffic,  or  to  fui-nish  cars  or  other  facilities  for 
transportation  for  the  party  applying  for  the  writ; 

Provided,  That  if  any  question  of  fact  as  to  the  proper  compensation  to 
the  conmion  carrier  for  the  service  to  be  enforced  by  the  writ  is  raised  by 
the  pleadings,  the  writ  of  peremptory  mandamus  may  issue,  notwithstand- 
ing such  question  of  fact  is  undetermined,  upon  such  terms  as  to  security, 
payment  of  money  into  the  court,  or  otherwise,  as  the  court  may  think 
proper,  pending  the  determination  of  the  question  of  fact: 

47 


738  APPENDIX. 

Provided,  That  the  remedy  liereby  given  by  writ  of  mandamus  shall  be 
cumulative,  and  shall  not  be  held  to  exclude  or  interfere  with  other  reme- 
dies provided  by  this  act  or  the  act  to  which  it  is  a  supplement. 

ACT  OF   FEB.  11,  1893,  c.  S3. 
(27  Stat,  at  Large,  443.) 

Be  it  enacted,  etc.  That  no  person  shall  be  excused  from  attending  and 
testifying  or  from  producing  books,  papers,  tariffs,  contracts,  agreements,  and 
documents  before  the  Interstate  Commerce  Commission,  or  in  obedience  to  the 
subpcenaof  the  Commission,  whether  such  subpoena  be  signed  or  issued  by  one 
or  more  Commissioners,  or  in  any  cause  or  proceeding,  criminal  or  otherwise, 
based  upon  or  growing  out  of  any  alk-ged  violation  of  the  act  of  Congress, 
entitled  "  An  act  to  regulate  commerce,"  approved  February  fourth,  eighteen 
hundred  and  eighty-seven,  or  of  any  amendment  thereof  on  the  ground  or  for 
the  reason  that  the  testimony  or  evidence,  documentary  or  otherwise,  required 
of  him,  may  tend  to  criminate  him  or  subject  him  to  a  penalty  or  forfeiture. 
But  no  person  shall  be  prosecuted  or  subjected  to  any  penalty  or  forfeiture  for 
or  on  account  of  any  transaction,  matter,  or  thing,  concerning  which  he  may 
testify,  or  produce  evidence,  documentary  or  otherwise,  before  said  Commis- 
sion, or  in  obedience  to  its  subpoena,  or  the  subpa?na  of  either  of  them,  or  in 
any  such  case  or  proceeding:  Provided,  That  no  person  so  testifying  shall  be 
exempt  from  prosecution  and  punishment  for  perjury  committed  in  so  testifying. 

Any  person  who  shall  neglect  or  refuse  to  attend  and  testify,  or  to  answer 
any  lawful  inquiry,  or  to  produce  books,  papers,  tariffs,  contracts,  agreements, 
and  documents,  if  in  his  power  to  do  so,  in  obedience  to  the  subpoena  or  lawful 
requirement  of  the  Commission  shall  be  guilty  of  an  offence,  and  upon  con- 
viction thereof  by  a  court  of  competent  jurisdiction  shall  be  punished  by 
fine  not  less  than  one  hundred  dollars  nor  more  than  five  thousand  dollars, 
or  by  imprisonment  for  not  more  than  one  year,  or  by  both  such  fine  and 
imprisonment. 

Approved  February  11,  1803. 


INTKIiSTATK    C'O.MMKliCE    IN    INTOXICATING    LIQUORS. 

ACT  OF   CONGRESS,  AUG.  8,  1890,  c.  728. 
(2G  Stat,  at  Lauge,  313.) 

P,e  it  enaclfid,  etc.  That  all  fermented,  distilled,  or  other  intoxicating  liquors 
or  liquids  transported  into  any  State  or  Territory  or  remaining  therein  for  use, 
consumption,  sale,  or  storage  therein,  shall  upon  arrival  in  such  State  or  Terri- 
tory be  subject  to  the  operation  and  effect  of  the  laws  of  such  State  or  Terri- 
tory enacted  in  the  exercise  of  its  police  powers,  to  the  same  extent  and  in  the 
h.'ime  manner  as  though  such  licpiids  or  liquors  had  been  produced  in  such 
State  or  Territory,  and  shall  not  be  exempt  therefrom  by  reason  of  being  intro- 
<luced  therein  in  original  packages  or  otherwise. 


INDEX. 


Abandonment  by  consignee,  444. 
Acceptance  of  goods,  see  Delivery. 

of  passenger,  what  sufficient,  528, 5.31. 
Act  of  God,  what  constitutes,   103,   104, 
108,  170,  276,  592. 
negligence  in  not  avoiding,  113,  154, 
328. 
Action,  form  of;  contract  or  tort,  18,  177, 
402,  404,  407,  410,  -50(3. 
for  injuries  causing  death,  676. 
limitation  of,  see  Limitution. 
who  proper  parties  to,  see  Parties. 
Advanced  charges,  449. 
cover  what,  469. 
lien  for,  466,  475. 
Agent  of  common  carrier  authority  of, 
16,  17,  54  n.,  63. 
authority  to  issue  bills  of  lading,  238, 

254,  2o6. 
liability  for  acts  of,  40,  115. 
connecting  carrier  deemed,  474. 
of  carrier  of  passengers,  authority  of, 

642. 
for  sale  of  tickets,  607. 
acts  of  beyond  scope   of  authority, 

545,  547,  548,  552,  573. 
notice  to,  120. 

delivery  of  bill  of  lading  to,  223,  226. 
Assumpsit,  action  of  for  failure  to  carry 
passenger,  675. 
action  of  in  general,  see  Action,  form 

of- 
Attachment  of  goods  in  transit,  377,  379, 
468. 
as  excuse  for  non-delivery,  363,  370, 
373,  379. 

Baggage,  carrier's  liability  for,  478,  503. 
what  constitutes,  30,  41,  48,  50,  52, 

56,  17.5,  202. 
acceptance  of,  what  sufficient,  64. 
extra  compensation  for,  37,  43,  52,  54, 

479. 
lien  on  for  fare,  479. 
money  not,  .39. 

imder  passenger's  control,  55,  58,  60. 
liability   of    connecting   carrier    for, 

308,  '314. 
checks  for,  see  Check. 
Bailee,  suit  by  against  carrier,  400. 
Bill  of  lading,  definition  and  nature  of, 
236,  244,  450. 
acceptance  of,  constituting  contract, 
196,  221,  222,  224. 


Bill  of  lading  —  continued. 

delivery  of  to  shipper's  agent,  223, 226. 
effect  of  delivery  after  shipment,  223, 

227. 
issued   without  authority,  238,   254, 

256. 
transfer  of  by  delivery,  333. 
not  negotiable  instrument,  246,  252, 

333,  337. 
reservation  of  jus  disponendi  in,  243, 

327. 
rights  of  assignee  tinder,  244. 
transfer  of  title  by,   323,  327,   330, 

468. 
parol  evidence  to  vary,  235,  241,  245, 

248,  250,  439. 
provisions  of  as  to  freight,  450,  472. 
provisions  of  as  to  demurrage,  456, 

465. 
stipulations  of  as  to  sale,  442. 
for  through  transportation,  see  Con- 

nectimi  Carriers. 
stipulations  of,  limiting  liability,  see 

Limitation  of  Liability. 
stipulations    as    to    navigation,    see 

Perils  of  Navir/ation. 
Burden  of  proof,  as  to  care  or  negligence 

of  common  carrier,  135,  427,  430. 
loss  or  injury  as  showing  negligence, 

412,  415,  421,  and  see  Presumptions. 
as  to  exemption  from  liability,  107, 

112. 
as  between  connecting  carriers,  160. 
as  to  diligence  in  furnishing  cars,  75. 
in  case  of  injury  to  passenger,  495, 

560,  576,  585,  595,  599. 
as  to  defects  in  machinery,  track,  and 

appliances,  566. 
as  to  right  of  passenger  on  freight 

train,  500. 

Carrier  of  goods,  see  Common  Carrier. 
Carrier  of  live-stock,  see  Live-stock-. 
Carrier  of  passengers,  duty  to  carry,  496, 
503,  .509,  611. 
not  bound  to  carry  objectionable  per- 
sons, 503,  513,  516,  518,  520,  524. 
not  bound  to  carry  person  expelled 

from  same  train,  712. 
granting    exclusive    privileges,   513, 

520,  524. 
compensation  inferred,  533. 
tender  of  fare,  543. 
lien  on  baggage  for  fare,  479. 


740 


INDEX. 


Carrier  of  passengers  —  continued. 

witlioiu  compensation,  liability,   see 

/Vet  Pdssenijer. 
liability   in    general,   125,   174,   490, 
495,  503,   533,  535,  561,  563,   571, 
579,  582,  587,  015. 
care  and  diligence  required,  569,  570, 

587. 
not   deemed   insurer,   489,  495,   561, 

583.  005. 
implied  contract,  534. 
limitation   of    liability   by   contract, 
650,  6.53,  054. 

as  to  free  passenger,  645,  650,  654. 
658. 
duty  to  liave  safe  machinery,  track, 
and  appliances,  413,  494,  563,  570, 
579,  592. 
liability   for  wrongful   acts   of    con- 
ductor or  servant,  602,  604,  G07. 
for   injury   bv  fellow-passenger, 

518,  610. 
for  injuries  by  outsiders,  615. 618. 
for  failure  of  conductor  to  wake 
passenger,  641. 
duty  as  to  accommodations,  524. 
duty  as  to  passenger  leaving  train,  942. 
liability  for  delay,  639,  641. 
continuous  passage,  667. 
liability  of  connecting  carrier,  677. 
who  deemed  passenger,  see  Passenger. 
negligence  of  passenger,  see  Contrihu- 
tory  \t:tilif/ence. 
Cars,  duty  to  furnish,  74. 
Charges,  for  storage,  465. 

for  carriage  of  goods,  see  Freight. 
advanced,  see  Advanced  Charges. 
Check,  not  a  contract,  195,  221. 

over  connecting  line,  309. 
Claim  for  damages,  limitation  of  time  for 

making,  212,  218. 
Colored  persons,  special  car  for,  716. 
Common  carrier,  definition,  who  deemed, 
12,  12  n.,  13,  16,  23,  25,  26,  27,  30, 
33,  34,  319. 
by  water,  96,  107. 
ferryman  deemed,  124. 
railroad  as,  275. 

duty  to  serve  all,  66,  76,  82,  85,  503. 
duty  to  furnisii  cars,  74. 
exclusive  privileges,  514. 
liabilitv  of   in   general,   36,  97,   103, 
16'J,'l70,  176,  201  n.,  266,  343,  376, 
402.  489,  582. 

for  loss  or  damage  from  act  of 

God,  see  An  of  dad. 
for  loss  or  damage  from    public 

enemy,  115,  117. 
for   lo88   due   to    acts   or   negli- 
gence of  Hhipper,  120,  122, 125, 
128,  137,  174. 
for  loss  or  damage  due  to  inher- 
ent nature  of  goods,  131,  133, 
137,  158,  328. 
for  failure  to  furnish  safe  appli- 
ances, 127. 


Common  carrier,  liability  of —  continued. 
in  case  of  stowage  on  deck,  439. 
for  deviation,  see  Deviation. 
limitation  of,  see  Limitation   of 

Liafiilitg. 
when  commences  and  terminates, 

see  Deliver ij. 
for  delivery  to  wrong  party,  see 

Delivery. 
for  dflay,  see  Delay. 
limitation  of,  see  Limitation. 
over  connecting  lines,  see  Connecting 

Carriers. 
charges  of,  see  Freight,  &\so  Ad va7iced 

Cliarqes. 
legislative  control  of.  89,  91.  92. 
Common  law,  nature  of,  274,  508,  540. 
Compensation  for  carriase  of  goods,  es- 
sential, 18,  19,  21.  ^ 
implied  contract  for,  22. 
must  be  reasonable,  88,  169. 
regulation  of,  90. 

for  carriage  of  baggage,  37,  43,  470. 
for  storage,  278,  465. 
as  affecting  liabihty  for  negligence, 

170,  535. 
effect   of   fraud,    163 ;   and  see   also 

Limitation  of  friability. 
apportionment,  collection,  etc.,  of,  see 

Freight. 
for  carriage  of  passengers,  see  Carrier 
(//'Passengers  and  Free  Passenger. 
Conductor  of  train,  authority  of,  500,  548, 

549,  555,  557,  602,  612,  617. 
Conflict  of  laws,  287,  676. 
Connecting  carriers,  extent  of  liabilitv  of, 
301,  304  n.,  305. 
presumption  of  liabilitv,  as  between, 

160,  316,  416,  417,  420. 
partnership  or  joint  liabilitv  of,  309, 

317. 
liability  of  for  baggage,  308,  314. 
limitation  of  liability  of  bv  contract, 

231,  290. 
contract  of  as  to  freight  charges,  472. 
delivery  as  between,  296. 
deemed  agent  of  owner,  418. 
deemed  forwarding  agent,  474. 
of  passengers,  677,  681. 
Consideration   for  contract  limiting  lia- 
bihty, 210,  219. 
for  carriage  of  passengers,  see  Car- 
rier of'  Pussengirs. 
for  carriage  of  goods  or  baggage,  see 
CiinijK  nsation,  also  Frtl(ilii. 
Consignee,  delivery   as  passing  title  to, 
319,  322,  327. 
liabilitj'  of  for  freight,  453. 
liability  of  for  general  average  and 

demurrage,  4r)6,  464. 
action  by.  see  Parties. 
Consignor,  liability  of  for  freight,  450. 

action  by,  see  Parties. 
Constitutional  law,  charter  contracts,  89. 

unitiirmity  of  legislation,  91. 
Construction  train,  jjassengcr  on,  -193.  497. 


INDEX. 


741 


Contract,  written,  parol  evidence  to  vary, 

239,  245. 
place  of  performance,  289. 
divisibility,  see  Frelyht. 
limitation  of  liability  by,  see  Limita- 
tion of  Liability. 
action  on,  see  Action. 
Contractor,  for  construction,  not  carrier 

of  passengers,  493,  4'J7. 
Contributory    negligence    of  passenger, 

what  constitutes,  623,  625,  629,  631, 

662. 
wlien  imputed,  628,  634,  635. 
duty  of  carrier  to  avoid,  662. 
when  question  for  jury,  628. 
Conversion  by  carrier,  wliat  constitutes, 

141,  325,  329,  346,  373. 
defeats  right  to  freight,  448. 
Custom  and  usage  as  affecting  liability 

of  carrier,  54  n.,  159,  189,  190,238. 
as  to  delivery,  267,  269,  433. 
as  to  acceptance,  65. 
as  to  passing  of  title,  .334. 
as    to   passenger's   right  on   freight 

train,  547. 
as   affecting   duty   as   to   passenger, 

643. 

Damages,   measure    of,   see    Measure  of 
Damacjes. 
proximate,  see  Proximate  Cause. 
Dangers  of  navigation,  see  Perils  of  Navi- 
gation. 
Death,  recovery  of  damages  for,  553. 
Declaration,  whether  in  contract  or  tort, 

form  of,  402,  404,  407,  409. 
Delay  in  transportation   of   goods,   dam- 
ages for,  75,  135,  136, 140,  141,  143, 
146. 

in   transportation  of  passenger,   see 
Carrier  of  Passengers. 
Delivery  to  carrier,  48,  62,  64,  65. 

as  passing  title,  353,  382,  385,  390, 
395. 

as  between  connecting  carriers,  296, 
301,  305,  453  n. 

effect  of  concealing  value,  see  Limi- 
tation of  Liability. 

by  carrier,  what  sufficient  to  termi- 
nate liability,  262,  276,  281,  286, 
343. 

personal,  when  required,  262,  267, 
270,  271. 

to  consignor  before  transportation 
commenced,  434. 

to  true  owner,  340. 

essential  to  entitle  to  freight,  440, 
447. 

waiving  lien  for  freight,  466. 

diligence  in,  required,  273. 

to  wrong  party,  liability  for,  3.30,34.3, 
345,  346,  352,  356,  359,  360. 

to  true  owner,  sufficient,  367. 

refusal  of  constitutes  conversion,  .329. 

excused  by  seizure  under  process, 
363,  364,  371,  373,  375,  379. 


Delivery  to  carrier  —  continued. 

what  sufficient  to  terminate  right  to 

stop  in  transit,  361. 
to  consignee  as  passing  title,  319,  322, 

327. 
of  bill  of  lading  as  passing  title,  see 
Bill  of  Lading. 
Demurrage,  456,  464. 
Depot,  privileges  at,  524. 
Deviation,  liability  for,  149,  152. 
Drover's  pass,  limitation  of  liability  in, 
654. 

Employees,  see  Servants. 

Estoppel,  bv  bill  of  lading,  238,  245,  248, 

250,  2.54,  259. 
Evidence,  see  Burden  of  Proof  and  Pre- 
sumption. 
Express  companv  deemed  carrier,  30,  76, 
271,  319,  598. 
liability  of  railroad  company  to  for 

loss,  514. 
delivery  by,  267,  269,  271. 
Expulsion  of  passenger,  for  improper  con- 
duct, 611. 
for  failure  to  purchase  ticket,  686, 

690,  710. 
in  case  of  mistake  in  ticket,  692,  695, 

700,  701,  704,  707. 
for  non-payment  of  fare,  663. 
effect  of  as  to  right  to  ride  on  same 

train,  712. 
damages  for,  694. 
at  what  place,  688,  690,  714. 


Fare  for  passage,  tender  of,  543. 
when  not  demanded,  604. 
where  ticket  not  purchased,  688,  709. 
ejectment  for  non-payment,  663. 
lien  on  baggage  for,  479. 
Federal  statutes,   limitation   of   carrier's 
liability  by,  721,723. 
interstate  commerce  act,  724. 
as  to  transportation  of  intoxicating 
liquors,  738. 
Ferryman  deemed  common  carrier,  25, 
124. 
regulation  of  rates,  3. 
Forged  order,  delivery  under,  346,  348, 

352. 
Forwarder  not  common  carrier,  33. 
Fraud,  effect  of  as  to  injury  to  passenger, 
555,  556. 
in    concealing  value    of  goods,   see 
Limitation  of  Liability. 
Free  passenger,  who  deemed,  549,   645, 
654,  6o8. 
by  invitation,  540. 
trespasser  not  deemed,  548,  557. 
liability  for  injury   to,  18,  20,   490, 

496,  545,  547,  573. 
limitation  of  liability  as  to,  648,  653, 
658. 
Freight,  discriminations  in,  82,  86,  88. 

regulation  of  charges,  90,  92. 
1         when  carrier  entitled  to,  115,  431, 435. 


742 


INDEX. 


Freight — continued. 

part  performance  does  not  entitle  to, 
4o2.  440,  44S. 

divisibility  of,  440. 

pro  rata,  io'2,  448. 

due  on  re-taking  goods  before  trans- 
portation, 433,  467. 

dead,  461. 

contract  of  connecting  carrier  as  to, 
472. 

in  case  goods  perish  from   defects, 
444. 

in  case  of  loss  of  goods  by  shipper's 
fault,  444. 

who  liable  for,  4-50,  453. 

recovery  of  after  payment,  458,  460. 

lien  for,  see  Lien. 

advanced,  see  Advanced  Charrjes. 
Freight  train,  passengers  onj499,  549. 

Garnishment   for   goods   in   transit,  377, 

379. 
Gratuitous  carriage,  see  Compensation. 


Hand-car,  passenger  upon,  496. 
Human  agency,  liability  for  loss  by 
Act  of  God. 


,  see 


Inherent  defects,  liability  for  injury  from, 

see  Common  Carrier. 
Insurer,   common   carrier    deemed,    103, 
165, 170, 176, 210,  218,  265,  276,  376. 
carrier    of   passenger,    not    deemed, 
480,  495,  561,  583,  605. 
Interest,  when  allowed  as  damages,  22. 
Interstate  commerce,  regulation  of,  90. 

federal  statutes,  relating  to,  724. 
Intoxicating    liquors,    transportation   of, 
738. 

Jettison,  235. 

King's  enemy,  see  Public  Enemy. 

Law  and  Fact,  60,  427,  028. 
Lfgal  process,  see  Process. 
Liability  of  carrier  of  goods,  see  Common 
Carrier. 
limitation  of,  see  Limitation  of  Lia- 

Inlitij. 
of  carrier  of  passengers,  see  Carrier 
of  Piisseni/ers. 
Lien  for  freight,  4.33,  435,  401,  464,  406, 
468,  470,  479,  481,  4H5. 
of  connecting  carrier,  472. 
for  advanced  charges,  449,  466,  409, 

474. 
as  against  true  owner  not  consenting 

to  transportation,  476,  481,  485. 
waived  by  di  livery,  400. 
carrier  not  boun<l  to  enforce,  461. 
no  power  to  sell,  470. 
for  demurrage,  404. 
on  passenger'b  baggage,  343,  479. 


Limitation  of  common  carrier's  liability, 
by  special  acceptance,  14,  114.  102. 

where  value  concealed,  38,  44,  114, 
162,  105,  171,  189. 

bv  notice,  37,  43, 171, 175, 186,  222  n., 
"504. 

by  notice  as  to  value,  170, 180,  189. 

by  contract  as  to  agreed  valuation, 
207. 

by  contract  in  bill  of  lading,  or  other- 
wise, 28,  152,  182,  186,  201,  211, 
222  n. 

as  to  dangers  of  navigation,  see 
Perils  <if  X(i rij/afion . 

by  contract,  consideration  for,  219. 

by  contract  not  good,  as  against 
nesligence,  172,  198,  208  n.,  415, 
427. 

burden  of  proof  in  such  cases,  412, 
412  n.,  415,  421. 

acceptance  of  bill  of  lading  contain- 
ing limitations  binding,  196,  221, 
222  n.,  224  n.,  306. 

bv  billot  lading  subsequently  deliv- 
"ered,  223,  227. 

effect  of  as  to  connecting  carrier,  229, 
290,  296,  307,  304  n. 

by  custom,  see  Custom  and  Usage. 

by  statute,  47,  721,  723. 

for  injury  to  passenger,  see  Carrier 
of  Passen;iers. 
Limitation  of   time  for  bringing  action, 

212. 
Live-stock,  liability  of  carriers  of,  73,  131, 

133,  135. 
Loading,  liability  of  shipper  for,  123,  137. 
Loss,  notice  as  to,  212,  218. 

Machinery,  track,  and  appliances,  liability 
of   common   carrier  for  loss  from 
defects  in,  427. 
liability  of  carrier  of  passengers  for 
injury  for  defects  in,  563,  570,  579, 
582,  688,  592. 
Master,  of  vessel,  authority  of,  573. 
liability  for  acts  of,  114,  239. 
issuance  of  bill  of  huling  by,  254. 
Master    and    servant,    responsibility   of 
master  for  acts  of  servant,  within 
scope  of  authority,  144,  498. 
responsibility  of  master  for  servant's 
acts   beyond   scope   of    authority, 
547,  000. 

for   negligence   of   servant,   545, 

030. 
for  wilfully  wrongful  acts  of  ser- 
vant, 143,  146,  002,  604,  007. 
for  injury  to  servant,  490. 
for  injury  to  servant  from  negli- 
gence  of    fellow-servant,  537, 
53'.t. 
for  injury  to  servant,  assumption 
of  risk,  539. 
see  Servant. 
Measure  of  damages,  interest,  22. 
for  delay,  70,  141. 


INDEX. 


743 


Measure  of  damages  —  continued. 

for  shipper's  breach  of  contract,  435. 

for  wrongful  expulsion  of  passenger, 
694. 
Merchandise  not  baggage,  see  Baggage. 
IMoney  not  baggage,  39. 

Negligence,  liability   of  common  carrier 
for,  107,  165. 

in  not  avoiding  loss  from  act  of 

God,  112,  154,  328. 
in  not  avoiding  injury  from  in- 
herent defects,  158. 
in  not  avoiding  injury  from  ex- 
cepted danger,  412,  415,  421. 
stowage  on  deck,  235,  439. 
delay,  see  Delay. 
delivery,  see  Delivery. 
gross,  173,  490,  535,  574. 
degrees  of,  574,  657,  661. 
question  of  tact  or  law,  60,  427. 
imputed,  628,  634, 635. 
as  to  machinery,  etc.,  see  Machinery, 

Track,  and  Appliaiices. 
of  passenger,  see    Contributory  Negli- 
gence. 
in  failing  to  protect  passenger,  see 

Carrier  of  Passengers. 
burden  of  proof  of,  see    Burden    of 

Proof. 
presumption  of  from    loss,  see  Pre- 
sumption. 
limitation  of  liability  for  by  contract, 
see  Limitation  of  Liability. 
Negotiability  of  bill  of  lading,  see  Bill  of 

Lading. 
Notice  to  consignee  of  goods  of  arrival, 
280,  284,  286. 
of  rule  as  to  demurrage,  464. 
as  to  riding  on  freight  train,  500. 
as  to  time  of  trains,  639. 
as  limiting  liability,  see  Limitation  of 
Liability. 

Owner  of  goods  in  carrier's  hands,  who 
deemed,  382,  384,  390,  395. 


Palace-car    companies,    see    Sleeping-car 

Companies. 
Parties  in  action  against  carrier,  382,  385, 

389,  395,  397,  400. 
Partners,    whetlier     connecting    carriers 

deemed,  309,  317. 
Passenger,  who  deemed,  493, 496,  499,  508, 
529,  531,  546,  549,  604. 
servant,  not,  496,  537,  538. 
person  pursuing  special  occupation, 

532. 
unauthorized  person   pursuing   busi- 
ness, 548. 
person  procuring   passage  by  fraud, 

655,  556. 
without  compensation,  see  Free  Pas- 
senger. 
liability  for  injury  to,  see  Carrier  of 
Passengers. 


Passenger  —  continued. 

negligence  of,  see  Contributory  Negli- 

qence. 
Payment   of  freight,    what    constitutes, 

458. 
Perils  of  navigation,  exception  of  in  bill 

of  lading,  107,  190,  198,  235,  412. 
Plaintiff,  wlio  may  be  in  action  against 

carrier,  see  Parties. 
Police  power  as  to  regulation  of  public 

calling,  2. 
of  carrier  of  passengers,  see   Rules 

and  Regulations. 
Presumption,  from  loss  of  or   injury  to 

goods,  58,  413,  427,  429. 
of   liability   as    between  connecting 

carriers,  316,  416,  417,  420. 
from  accident  to  passenger,  493,  575, 

585,  595,  599,  631. 
Private  carrier,  of  goods,  12. 

of  passengers,  493. 
Process,  seizure  of  goods  under  as  excus- 
ing non-delivery,  363,  365,  371,  372, 

375,  379. 
Protection  of  passenger  by  carrier,  602, 

606,  607,  610,  618. 
Proximate  cause,  113,  149,  614,  662. 
Public  calling,  what  deemed,  12,  12  n.,  16. 
Public  enemy,  acts  of  as  exempting  com- 
mon    carrier   from    liability,  115, 

117. 

Railroads,  see  Common  Carriers. 

Rates,  regulation  of,  3  ;  see  also   Common 

Carrier. 
Receipt,  bill  of  lading  deemed,  248 ;  and 

see  Bill  of  Lading. 
Recovery  of  freiglit  paid,  457,  460. 
Respondeat    superior,    see     Master    and 

Servant. 
Rules     and     regulations     of    passenger 
carriers,  499,  524. 
as  to  passengers  on  freight  trains, 

554. 
as  to  purchase  of  ticket,  685,  688.^ 
as  to  producing  ticket,  696,  700,  704, 

707. 
as  to  place  of  riding,  716. 
as  to  conduct  of  passenger,  717. 
enforcement    of  by    expulsion,    613, 
714. 


Sale  of  goods  by  master,  4^42. 
of  perishable  goods,  476. 
not  authorized  to  enforce  lien,  476. 
Servant,  who  deemed,  607. 
authority  of,  500,  552. 
see  ^faster  and  Servant. 
Sleeping-car  companies,  liability  for  bag- 
gage, 57. 
duty" to  carry  all,  505. 
liability  of  railroad  for  negligence  of, 
598. 
Speed,  as  indicating  negligence,  582. 
State  decisions  not  binding  in  other  State 
or  U.  S.  courts,  287. 


744 


INDEX. 


Stagecoaches,   as  carriers  of  passengers, 
503,  o(J5. 
as  carriers  of  money,  17. 
Station,  privileges  at,  5i*3. 
Steamboat    companies,    liability    of    for 
baggage,  GO. 
for  money,  16. 
as  carriers  of  passengers,  605. 
Stoppage  in  transitu,  oGl,  4*^6. 
Storage,  ciiarges  for,  270,  -165. 
Strikers,  liability  for  acts  of,  144,  146. 

Tender  of  freiglit,  458,  468. 

of  fare,  543. 
Ticket,  nature  and  effect  of,  642,  663,  666, 
682. 

whether  a  contract,  57,  222,  639,  654. 

excuse  for  refusal  to  honor.  515,  516. 

effect   of   mistake  in,  692,  695,   700, 
701,  704,  707. 

conditions  of  as  to  stamping,  674. 

transfer  of,  556,  668,  681,  683. 

for  through  transportation,  309. 

over  connecting  lines,  671,  079. 


Ticket  — continued. 

coupon,  315,  671,676. 

purchase  of.  531,  685,  688,  709. 

failure  to  procure,  676. 

for  continuous  passage,  667,  671. 

not  good  in  reverse  direction,  669. 

limited,  669,  671. 

stop  over,  479. 

fraudulent,  550. 
Time  of  running  trains,  639. 
Tort,  refusal  to  carry  passenger  deemed, 
506. 

see  Action. 
Tow-boat,  not  common  carrier,  26. 
Track,   defects  in,  see  Machinery,  Track, 

and  Ajipliances. 
Trespasser,   not  deemed  passenger,  545, 

546,  548,  550,  556,  600. 
Trover,  for  misdelivery,  346. 

Warehouseman,  carrier  liable  as,  265,  276, 
283.  286,  348,  465. 
connecting  carrier  not  deemed,  296. 
regulation  of  rates  of,  4. 


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AA    000  684  109    2 


